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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


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CATALOGUE 

OF  '   " 

YALUABLE    LAW    BOOKS 

PUBLISHED  BY 

BANKS,  GOULD  &  CO.,  NEW  YORK, 

•  AND 

GOULD,  BANKS  &  CO.,  ALBANY. 


ADAMS  OX  EJECTMENT.  A  Treatise  on  the  Principles  and  Practice  of  the  Action  of 
Ejectment,  and  the  Resulting  Action  for  Mesne  Profits,  bj'  John  Adams,  serp:eant-at- 
law.  Tlie  fourth  American  from  the  Loudon  edition,  witli  Notes  of  the  Decisions  made 
by  the  Supreme  and  Circuit  Courts  of  the  United  States,  and  by  the  Courts  of  tlie  several 
States,  whose  decisions  have  been  reported  ;  together  with  the  Statutory  provisions,  in 
relation  to  those  actions,  contained  in  the  Revised  Statutes  of  New  York ;  and  Prece- 
dents of  Entries,  Pleadings,  and  Pi'ocess  adapted  thereto,  by  John  L.  Tillinghast,  coun- 
sellor-at-law:  To  which  are  added  Annotations'and  References  to  the  most  recent 
American  Decisions,  by  Thomas  W.  Clerke,  connsellor-at-law.  Carefully  collated,  and 
made  to  correspond  with  the  latest  London  edition,  corrected  by  the  author  ;  together 
with  additional  Notes  and  Decisions  in  the  Courts  of  the  several  States.  By  William 
Hogan,  counsellor-at-law ;  and  continued  by  T.  W.  Waterman.  Embodying  all  the 
Atnerican  and  English  Actions,  to  the  present  time.     $5. 

ALLEN  ON  SHERIFFS.  The  Duties  and  Liabilities  of  Sheriffs,  in  their  various  relations 
to  the  Public  and  to  Individuals,  as  governed  by  the  principles  of  common  law,  and  regu- 
lated by  the  Statutes  of  New  York.  Revised,  Corrected,  and  Enlarged,  by  Otis  Allen, 
counsellor-at-law.     $3. 

THE  AMERICAN  CHANCERY  DIGEST.  Being  an  Analytical  Digested  Index  of  all  the 
Reported  Decisions  in  Equity  of  the  United  States  Courts,  and  of  the  Courts  of  the  seve- 
ral States,  to  the  present  time,  witli  Notes  and  a  copious  Index.  Also  an  Introductory 
Essay,  comprising  an  Historical  Sketch  of  the  Court  of  Chancery,  an  account  of  ilie  na- 
ture, powers,  and  functions  of  the  Court,  and  the  organization  and  equity  jurisdiction  of 
the  Court  of  the  United  States,  and  of  each  of  the  States  of  the  Union.  By  Thomas 
W.  Waterman,  of  the  New  York  Bar.     3  Vols.     $15. 

ANTHON'S  NISI  PRIUS  REPORTS.  The  Law  of  Nisi  Prius:  Being  Reports  of  Cases 
determined  at  Nisi  Prius,  in  the  Supremo  Court  of  the  State  of  New  York;  with  Notes 
and  Commentaries  on  each  case.  Second  r^dition.  With  many  additional  cases  never 
published  before.  Judges  presiding : — Chief  Justice  James  Kent,  Justices  Van  Ness, 
Thompson,  Spencer,  and  Yeates.     1  Vol.     $4. 

ARCHBOLD'S  CIVIL  PLEADING.  A  Digest  of  the  Law  relative  to  Pleading  and  Evi- 
dence in  Civil  Actions,  by  John  Frederick  Archbold,  barrister-at-law.  Second  Ameri- 
can, from  the  last  London  edition.     $4. 

iRCHBOLD'S  PLEADING  AND  EVIDENCE.  Ardibold's  Summary  of  the  Law  rela- 
ting to  Pleading  and  E-  once  in  Criminal  Cases:  with  Statutes,  Precedents  of  Indict- 
ments. &c.,  and  the  .ce  necessary  to  support  them.     By  John  Jervis,  Esq.,  Q.  C, 


ii  BANKS,  GOULD  &  GO'S  PUBLICATIONS. 

of  the  Middle  Temple,  barrister-at-law,  with  the  Patent  of  Precedence.  American, 
from  the  London  edition;  much  Enlarged  and  Improved,  l>_y  W.  N.  Welshy,  Kfq.,  of 
the  Middle  Temple,  banister-at-law,  Recorder  of  Chester.  To  whicli  are  added  innu- 
merable American  and  English  Ca.ses,  and  brought  down  to  the  present  time.  By 
Thomas  W.  Waterman.     3  Vols.     $16  50. 

BAEBOUR'S  CHANCERY  PRACTICE.  A  Treatise  on  the  Practice  of  the  Court  of  Chan- 
eery,  with  an  Appendix  of  Precedents.  By  Oliver  L.  Barbour,  counsellor-atlaw.  2 
Vols.     $12. 

BARBOUR'S  CHANCERY  REPORTS.  Reports  of  Cases  argued  and  determined  in  the 
Court  of  Chancery  of  the  State  of  New  York,  from  1845  to  1847  By  Oliver  L.  Barbour, 
ccunsellor-at-law,  successor  ol  Paige,  and  in  continuation  ol  Johnson,  Hopl<ins,  and 
Paige.  These  decisions  are  considered  the  ablest  and  most  reliable  of  any  oilier  in  our 
country.     3  Vols.     $15. 

BARBOUR'S  CRIMINAL  TREATISE.  The  Magistrate's  Criminal  Law :  a  Practical  Trea- 
tise on  the  Jurisdiction,  Duty,  and  Authority  ot  ilie  Ju-'^iices  ol  tlie  Peace  in  the  Slate  of 
New  York  in  Criminal  Courts.  Containing  also  a  Summary  of  tlie  Law  relative  to 
Crimes  and  Punishments,  with  an  Appendix  of  Forms  of  Proceedings.  By  OHver  L. 
Barbour,  counsellor-at-law.  Second  edition.  Much  enlarged  with  Notes  and  Refer- 
ences, and  additional  Forms.     $5. 

BARBOUR'S  LAW  OF  SET-OFF.  A  Treatise  on  the  Law  of  Set-Off,  with  an  Appendix 
of  Precedents.     By  Oliver  L.  Barbour,  counsellor-at-law.     $2. 

BARBOUR'S  SUPREME  COURT  REPORTS.  Reports  of  Cases,  in  Law  and  Equity,  in 
the  Supreme  Court  of  tlie  State  of  New  York,  under  tlie  New  Constitution,  1846.  By 
Oliver  L.  Barbour,  counsellor-at-law.     17  Vols.     $59  50. 

BEAMES'  NE  EXEAT.  A  Brief  View  of  the  Writ  of  Ne  Exeat  Regno,  with  Practical 
Remarks  upon  it  as  an  I'lquilable  Process.  By  John  Beame.«.  of  Lincoln's  Inn,  barri.ster- 
at-lavv.  First  American  edition,  with  Notes  "of  the  recent  English  and  American  Deci- 
sions.    By  H.  W.  Warner,  solicitor  and  counsel  in  Chancery.     $0  75. 

BEEBE'S  QUESTIONS  TO  GRAHAM'S  PRACTICE.  Questions  adapted  to  Graham's 
Practice  of  the  New  York  Supreme  Court;  and  comprising  an  Analysis  of  that  work. 
By  Pierre  Ogilvie  Beebe,  student-at-law.     $2. 

BENEDICT'S  AMERICAN  ADMIRALTY.  The  American  Admiralty:  its  Jurisdiction 
and  Practice,  with  Practical  Forms  and  Directions.     By  Erastus  C.  Benedict.     $5  50. 

BLYDENBURGH  ON  USURY.  A  Treatise  on  the  Law  of  Usury,  to  which  are  added 
the  Statutes  of  the  several  States  relating  to  interest  now  in  force,  togetiier  vvitli  a  Di- 
gest ot  all  tiie  Decisions,  and  an  Index  to  the  Reported  Adjudications  from  the  Statutes 
of  Henry  VIH,  to  tiie  present  time.     By  J.  W.  Biydenburgh,  counsellor-at-law.     $3. 

BRIDGMAN'S  CHANCERY  DIGEST,  Vol.  IV.  A  Digest  of  the  Reported  Cases  on 
Points  of  Practice  and  Pleading  in  the  Courts  of  Equity  in  England  and  Ireland,  and  of 
the  Rules  and  Orders  of  the  same  Courts;  from  the  earliest  period  to  the  present  time; 
intended  as  a  Companion  to  Bridgham's  Equity  Digest.  By  R.  0.  Bridgman,  of  Lin- 
coln's Inn,  barrisier-at-law. 

BRIGHT'S  HUSB.AND  AND  WIFR.  A  Treati.se  on  the  Law  of  Husband  and  Wife,  as 
respects  properly:  Partly  founded  on  Roper's  Treatise,  and  comprising  Jacob's  ^otes 
and  Addiuons  thereto,  by  Joiin  Edward  Bright,  Esq.,  of  the  Inner  Temple,  barrister-at- 
law  With  copious  Notes  and  References  to  the  American  Decisions,  and  also  an 
Appendix,  containing  the  Statutes  of  every  State  in  the  Union,  in  relation  to  the  rio-hts 
and  property  of  females  before  and  after  marriage.  By  Ralph  Lock  wood,  counsellur-at- 
law.     2  Vols.     $10. 

GAINES'  C.^SE^i.  Cases  argued  and  determined  in  the  Court  for  the  Trial  of  Impeach- 
ments and  Correction  of  Errors  in  the  State  of  New  York.  By  George  Caines,  coun- 
sellor-at-law.      .$4. 


BANKS,  GOULD  &  CO.'S  PUBLICATIONS.  u\ 

CAINKS'  RErOUTS.  Now  York  Term  Reports  of  Cases  aro:ued  and  determined  in  the 
Supremo  Court  of  tliat  Slate.  Third  edition  just  pul)lislied,  containin;;-  Notes  and  Kefer- 
onces  to  all  llie  American  and  Kn^lisli  decisions,  lo  iho  time  of  publicalion,  liy  Water- 
man; witli  Corrections  and  Additions.  By  George  Gaines,  counsellor-at-law.  3  Vols. 
$12. 

CALIFORNIA  PRACTICE.  A  Treatise  on  the  Practice  «x{-4lio 'Courts  of  tlie  State  of 
California,  carefully  adapted  to  tiio  existing  law.  By  J.  B.  Hart,  of  tiie  San  Francisco 
Bar.     $3  50. 

CAMPBELL'S  NISI  PIMUS  REPORTS.  Reports  of  Cases  determined  at  Nisi  Prius,  in 
the  Court  of  King's  Bench  and  Common  Pleas,  and  on  the  Home  Circuit,  from  the  sit- 
tings after  Micliaclmas  Term.  48  Geo.  IH,  1807,  to  tho  sittings  after  Hilary  Term,  50 
Geo.  Ill,  1816.  boih  inclusive.  By  John  Campbell,  of  Lincoln's  Inn,  barristir-at-law. 
To  which  are  added  Notes  referring  to  the  American  Authorities.  By  Samuel  Howe, 
counsellor-at-law.     4  Vols.     New  York,  1810  to  1821. 

CHITTY'S  CRIMINAL  LAW.  A  Practical  Treatise  on  tiie  Criminal  Lnw,  comprising  the 
Practice,  Pleadings,  and  Eviilence,  whicli  occur  in  tiie  course  of  Criminal  Prosecutions, 
wlietlier  by  Indictment  or  Information  :  wiili  a  copious  collection  of  Precedents  of  In- 
dictment.<5.  Information,  Presentments,  and  every  description  of  Practical  Forms,  with 
Compreliensive  Notes  upon  each  offence,  the  Process,  Indictment,  Plea,  Helence,  Evi- 
dence, Trial,  Verdict,  Judgment,  and  Punishment.  By  Josepli  Cliiit}',  of  tlie  Jliddlo 
Temple,  barrister-at-law.  Fourth  American,  from  tho  Second  and  last  Lond(jn  Edi- 
tion, corrected  and  enlarged  by  tlio  author;  with  Notes  and  Correction.s.  By  Kidiard 
Peters  and  Tiios.  Huntington  To  whicli  are  now  added.  Notes  and  References  to  tho 
cases  decided  in  the  Courts  of  the  United  States  and  of  the  several  States,  to  the  pre- 
sent time,  as  well  as  to  the  late  English  decisions.  By  J.  C.  Perkins,  counsellor-at- 
law.     3  Vols.     $12. 

CLANCY'S  RIGHTS  OF  WOMEN.  A  Treatise  on  tlie  Rights,  Duties,  and  Liabilities  of 
IIus')and  and  Wife,  at  Liw  and  in  Equity.  By  James  Clancy,  barristur-at-law. 
Second  American,  fi-om  the  last  London  edition.     In  press. 

CLARKE'S  CflANCKRY  REPORTS.  Reports  of  Chancery  Cases,  Decided  in  tho  Eighth 
Circuit  of  the  State  of  New  York,  liy  Hon.  Frederick  Whittlesey,  Vice-Cliancellor.  By 
Cliarles  L.  Clarke,  counsellor-at-law.     $5. 

COMYN  ON  CONTRACTS.  Tlie  Law  of  Contracts  and  Promises,  upon  various  .subjects 
and  with  particular  persons,  as  .settled  in  the  Action  of  Assumpsit.  In  Three  Parts. 
By  Samuel  Comyn,  of  the  Middje  Temple,  barrister-at-law.  The  fourth  American, 
from  the  last  London  edition.  Revised  and  Enlarged  by  the  addition  of  American  and 
later  Englisli  Cases.     In  press. 

OOMSTOCK'S  REPORTS.  Reports  of  Cases  argued  and  determined  in  tlic  Court  of  Ap- 
peals of  the  State  of  New  York.  By  George  F.  Comstock,  Esq.,  State  Reporter. 
Judyes'  names  :  Freeborn  G.  Jewet:,  Greene  C.  Bronson,  Addison  Gardner,  Charles  H. 
Ruggles,  Samuel  Jones,  William  B.  Wright,  'I  homas  A.  Johnson,  Charles  Cray,  Eli.sha 
P.  Hurlburt,  Ira  llarri.s,  Daniel  l^ratt,  Henry  W.  Taylor,  Selah  B.  Strong,  Daniel  Cady, 
William  H.  Slianliland,  James  G.  Iloyt.     2  Vols.     $5. 

CONNECTICUT  REPORTS.  Reports  of  Cases  argued  and  determined  in  the  Supreme 
Court  of  Errors  in  tlie  State  of  Connecticut,  from  1814  to  1853.  inclusive;  prepared 
and  pulilished  in  pursuance  of  a  Statute  Law  of  the  State.  Second  edition,  (Jorrected, 
with  Notes  and  References  to  the  .several  State  Reports.  This  series  of  very  valuable 
Reports  is  now  to  \>e  had  complete,  and  at  a  Reduced  Price.  By  the  Hon.  Thomas 
Day.     21  Vols.     $105. 

COURT  RULES.  Rules  and  Orders  of  the  Court  of  Chancery  of  the  State  of  New  York, 
as  Revised  and  Kstablished  by  Chancellor  Walworth,  in  184+,  with  Precedents  of 
Writs,  Orders,  and  Bills  of  Costs,  approved  by  the  Chancellor,  and  Notes  of  Decisions, 
showing  ilie  Practical  (Jonstruclion  of  the  Rules. 

Rules  and  Orders  of  the  Supreme  Court  of  the  State  of  New  York,  Revised  and 
Established  i>y  the  Court,  in  May  Term,  1845. 

Rules  of  the  Court  of  Appeals  of  the  State  of  New  York.  Adopted  at  a  Term  of 
the  Court  held  at  the  Capitol  in  the  City  of  Albany,  on  the  Gth  day  of  July,  1847. 

Rules  of  Practice  of  tho  Supreme  (Jouri  of  the  State  of  New  York,  at.  Law  and  in 
Equity,  as  established  l)y  the  Guurt  at  July  Term,  1847.  With  Precedents  of  Writs, 
Orders  and  Bills  of  Costs,  and  Notes  of  Decisions. 

Rules  of  Practice  of  tlie  Superior  ('ourt  of  the  tJity  of  Now  York. 

Rules  and  Orders  of  the  Couri  of  Common  Pleas,  for  tho  City  and  County  of  Now 
York. 


i^  BANKS,  GOULD  &  CO.'S  PUBLICATIONS. 

COWEN'3  CIVIL  TREATISE.  By  Esek  Cowen,  Judge  of  the  Supreme  Court.  Fourth 
edition.  Re-written  and  adapted  to  the  present  state  of  the  law.  By  Wilham  Tracy, 
counsellor-at-la\v.     $5. 

COWKN'S  REPORTS.  Reports  of  Cases  argued  and  determined  in  the  Supreme  Court  for 
the  Trial  of  Impeachments  and  the  Correction  of  Errors  of  the  State  of  New  York,  from 
1823  to  1823.  By  Esek  Cowen,  counsellor-at-law,  and  successor  of  Johnson.  9  Vols. 
$45, 

CROWN  CIRCUIT  COMPANION.  The  Crown  Circuit  Companion:  First  American  edi- 
tion into  whicli  has  been  incorporated  the  work  formerly  published  under  the  name  of 
the  Crown  Circuit  Assistant.  Both  works  have  also  been  carefully  Revised,  and  such 
additions  made  thereto  as  modern  Statutes  and  Decisions  have  rendered  necessary.  $3, 

DART'S  LAW  AND  PRACTICK  OF  VENDORS  AND  PURCHASERS  OF  REAL 
ESTATE.  A  Compendium  of  the  Law  and  Practice  of  Vendors  and  Purchasers  of 
Real  Estate.  By  J.  Henry  Dart,  of  Lincoln's  Inn,  barrister-at-law.  With  Notes  and 
Relereucesto  American  Decisions,  by  Thomas  W.  Waterman,  counsellor-at-law.    $5  50. 

DAYTON'S  SURROGATE.  The  ofBce  of  Surrogate,  Surrogates  and  Surrogates'  Courts, 
and  Executors,  Administrators  and  Guardians,  in  the  State  of  New  York.  A  Compi- 
lation of  the  Statutes,  and  a  Summary  of  the  Judicial  Decisions  of  the  State  of  New 
York,  relating  to  tiie  Office  of  Surrogate,  tiie  Proving  of  Wills,  the  granting  of  Probate, 
Administration  and  Guardianship,  and  the  Rights,  Duties  and  Liabilities  of  Executors, 
Administrators  and  Guardians,  arranged  in  tlie  lorm  of  a  Treatise.  By  Isaac  Dayton, 
counsellor-at-law.  With  an  Appendix,  containing  several  decisions  upon  the  above 
named  subjects,  not  elsewhere  reported,  and  forms  and  precedents  for  practice  in  the 
Surrogates'  Courts,  and  tor  the  use  of  Executors,  Administrators  and  Guardians. 

DEAN'S  MEDICAL  JURISPRUDENCE.  Principles  of  Medical  Jurisprudence,  designed 
tor  the  Professions  of  Law  and  Medicine.  By  Amos  Dean,  coansellor-at-law  and 
Professor  of  Medical  Jurisprudence  in  the  Albany  Medical  College.  Second  Edition. 
$4  50. 

DENIO'S  REPORTS.  Reports  of  Cases  argued  an'd  determined  in  the  Supreme  Court, 
and  in  the  Court  lor  liie  Correction  of  Errors  of  the  State  of  New  Yoric,  irom  1845  to 
1848,  inclusive.  By  Hiram  Denio,  successor  of  Hill  and  the  continuation  of  Johnson, 
Cowen  and  Wendell.     5  Vols.     $20. 

DIGEST  OF  SOUTH  CAROLINA  REPORTS.  A  Digest  of  the  Cases  Reported  in  the 
Constitutional  Reports  of  South  Carolina.     By  a  Member  of  the  Charleston  Bar. 

DUNLAP'S  PALEY'S  AGENCY.  A  Treatise  on  the  Law  of  Principal  and  Agent,  chiefly 
with  reference  to  Mercantile  Transactions.  By  William  Pale}',  of  Lincoln's  Inn,  Esq., 
harrister-at-law.  The  tliird  edition,  with  considerable  Additions,  by  J.  H.  Lloyd,  of 
the  Inner  Temple,  Esq,  barrister-at-law.  Third  American  edition,  with  extensive 
Additions,  referring  to,  and  embracing  all  the  cases  both  English  and  American,  to  the 
present  lime.     By  John  A.  Dunlap,  Esq.,  coun.sellor-at-law.     $4. 

EDEN  ON  INJUNCTIONS.  A  Treatise  on  the  Law  of  Injunctions.  By  the  Hon.  Robert 
Henley  Eden,  of  Lincoln's  Inn,  barrister-at-law.  Tliird  American,  from  the  last  Lon- 
don edition:  to  wiiicli  is  added  copious  Notes  and  References  to  all  the  decisions  of 
the  Courts  of  the  United  States.  aiMi  of  the  different  States,  on  this  subject.  By  Jacob 
D.  Wheeler,  counsellor-at-law.  A  new  edition,  by  James  Haig,  Esq.,  of  Lincoln's  Inu, 
barrister-at-law.  Fourth  American  edition,  from  the  last  English.  By  Waterman, 
containing  all  the  American  and  English  Decisions  to  the  present  time,  making  two 
large  8vo.  voLs,,  a  complete  work  on  this  subject.     $10. 

EDWARDS  ON  PARTIirS  IN  CHANCERY.  A  Practical  Treatise  on  Parties  to  Bills 
and  other  Pleadings  in  Chancery:  witli  Precedents.  By  Charles  Edwards,  counsellor- 
at-law  and  in  equity.     $2  50. 

EDWARDS'  CHANCKRY  REPORTS.  Reports  of  Chancery  Cases  decided  in  the  First 
Circuit  of  the  Slate  of  New  York,  by  the  Hon.  William  T.  McCoun,  Vice-Chancellor. 
By  Charles  Edwards,  counsellor-at-law.     4  Vols.     §20. 

EDWARDS  ON  RKCKIVERS.  On  Receivers  in  Chancery,  with  Precedents.  By  Charles 
Edwards,  counsellor-at-law,  Author  of  "  Edwards  on  Parties,"  and  Reporter  of  the 
Vice-Cliancellor's  Court  of  tiie  First  Circuit  of  the  State  of  New  York.     $5. 


BANKS,  GOULD,  &  CO.'S  PUBLICATIONS.  V 

ELLIOTT'S  DIPLOMATIC  CODE.  Tho  American  Diplomatic  Code,  embrnoinpr  a  collec- 
tion of  Treaties  and  Conventions  between  tlie  United  States  and  Fon'i<rn  Powers,  from 
1778  to  18:^4;  witli  an  abstract  of  important  Judicial  Decisions  on  Points  connected 
with  our  Foreign  Relations.  Also,  a  Concise  Diplomatic  Manual,  contaming  a  sum- 
mary of  tiie  Law  of  Nations,  from  tlie  works  of  Wici^iiefort,  Vattel,  Martens,  Ward, 
Kent,  Story,  &c ,  &c.,  and  other  Diplomatic  Writin<i;s  on  Qii'^rtTms  of  International  Law, 
useful  for  Public  Ministers  and  Consuls,  and  for  all  others  liaving  official  or  commercial 
intercourse  with  Foreign  Nations.     By  Jonathan  Elliott.     2  Vols.     $12. 

ENGLISH  CHANCERY  REPORTS.  Tiiose  very  valuable  and  important  Decisions  are  re- 
pulilishod  verbatim  from  tho  London  copy,  with  notes  and  references  to  English  and 
American  Authorities.  By  John  A.  Dunlap,  and  continued  hj  the  Hon.  E.  F.  Smith, 
being  the  Reports  of  Cases  argued  and  determined  in  the  High  Courts  of  Chancery, 
the  Rolls  Court,  and  the  Vice-Chancery  Courts  of  England.  Published  in  full, 
without  any  condensation  whatever.  The  first  18  Vols,  bound:  each  contnin  2  Vols, 
of  tho  English  Reports,  and  are  sold  for  $5  per  Vol.  The  subsequent  17  Vols,  at 
$3  per  Vol.  53  English  Vols  in  35  American  Vols.,  with  Notes,  &c.  to  American  De- 
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BANKS,  GOULD  &  CO.'S  PUBLICATIONS.  vii 

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BANK'S  GOULD  &  CO.'S  PUBLICATION.  ix 

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WATERMAN'S  TREATISE.  A  Treatise  on  the  Civil  Jurisdiction  of  Justices  of  the  Peace  ; 
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Abbott's  Admiralty  Reports,  vol.  1 5  50 

Angftll  on  Comniou  Carriers 5  50 

Angell  on  Limitations 5  50 

Angell  on  Tide  Waters 4  50 

Angell  on  AVatercourses 5  00 

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American  Almanac,  1858, 1  50 

Andrew's  Digest  Opinions  Att'ys-  Gen..     3  00 

Authon's  Law  .Student, 4  00 

Addison  on  Contracts, 6  50 

Bennett  and   Heard's  Leading  Criminal 

CB«e8  2volR. 10  00 

Bishop  on  Marriage  and  Divorce 5  00 


Bishop  on  Criminal  Law,  2  vols 10  00 

Browne  on  the  Statute  oi'  Frauds 5  00 

British  I'oets  (Littie  Brown  &  Co's  Edi- 

tion)98vols 

British  Essayists  (Little  Brown  &  Co's 

Edition)  38  vols 

Bancroft's  History  of  the  United  States, 

7  vols  now  ready 

Barbour's  N.  Y.  Supreme  Court  Reports, 

24  vols 84  00 

Barbour's N.  Y.  Chancer}' Reports  3  vols  16  CO 

Barbour's  Criminal  Treatise 5  00 

Barbour's  Law  of  Set-off. 2  00 

Benedict's  American  Admiralty 5  50 

Bright's  Husband  and  Wile  2  vols 10  00 

Bingham  on  Infancy 4  50 

Jiurrill's  Law  Dictionary,  2  vols 8  00 

Burrill's   Practice  3  vols. 15  00 

Burrill  on  Assignments 5  00 

Burrill  on  Circumstantial  Evidence 5  50 

Bradford's  !N'ew  York  Surrogate  Kep'ts. 

3  vols '  12  00 

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Bett's  Admiralty  Practice. . . ; 2  50 

Blydenburgh  on  Usury 3  00 

Bacon'.s  Abridgment,  lO  vols 50  00 

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Byles  onBills '.v..V.V.f. 4  60 


CATALOGUE    OF   LAW    BOOKS. 


Broom's  Legal  Maxims 4  00 

lUck's  Jltdical  .Turisprudence,  2  vols.. .  11  00 

ltii}(litli y's  Ciiittd  States  Digest G  (K) 

Iti.s'ict  nil  I'aitiicisliip 1  50 

Hlackbiirii  on  .Sulcs, 0  75 

Itotfs  Adininill  V  l)i;ci,><ious,  2  vols 10  00 

Klackwi'll  on  I'a.N    Pities 7  00 

Blatchford  and  Olcott's  lloports,  2  vols.  10  00 

Chitty'.s  I-:<iiiity  Digest,  4  vols 25  00 

Collyer  ou  J'artner.ship 5  50 

Ci-aiicli'.«('irciiil  Court  Reports,  6  vols. .  33  00 

C'urtis's  t->iuity  Precedents 5  00 

Curtis's  V.  S.  .Supreme  Court  Decisions. 

22  vols ■  90  00 

(Jurtis's  U.  S.  Supreme  Court  Digest 5  60 

Curtis  on  Patents. 5  00 

Curtis  on  Copyriglit 3  50 

Curtis's  American  Conveyancer 1  00 

Cowen's  New  York  Reports,  9  vols 45  00 

Coweu's  Civil  Treatise 5  00 

Caiiies'  Aew  York  Reports,  3  vols 12  00 

Caines'  Ca!<es G  00 

Cliitty's  Criminal  Law,  3  vols 12  00 

Clarke's  N.Y.  Chancery  Reports 6  00 

Connecticut  Reports,  21  vols 105  00 

Crocker  ou  SIicrilTs 5  00 

Cleveland's  New  York  Banking  Laws. .    4  00 

Cooper's  Justinian 5  50 

Crown  Cases  Rcvcr.sed,  6  vols 18  00 

Curtis's  Commentaries 5  50 

Collier  on  Mines 3  00 

Chitty's  General  Practice,  4  vols  16  00 

Comstock's   jV,    Y.    Court   of  Appeals 

Reports,  4  vols 16  00 

Clinton's  New  York  Digest,  4  vols 26  00 

Coke  upon  Litttleton,  2'vols 11  00 

Coote  ou  Mortgages— New  Edition  in 

Press 

Coventry  &  Hughes'  Digest,  2  vols '.    9  00 

Coukliu's  Treatise 7  00 

Cranch's  U.  S.  Reports,  8  vols 25  00 

Chitty's  Blackstoue,  2  vols 5  00 

Chitty  ou  Pleading,  3  vols 10  00 

Chitty  on  Bills 5  00 

Chitty  on  Contracts 5  00 

Daniel's  Chancery  Practice,  3  vols 12  00 

Domafs  Civil  Law,  2  vols 11  00 

Drake  on  Attachment 4  50 

Dunlaps  Admiralty  Practice 3  50 

Dart  on  Vendors  of  Real  Estate 5  50 

Dayton's  Surrogates 5  50 

Dean's  Medical  Jurisprudence 3  50 

Denio's  New  York  Reports,  5  vols 20  00 

Dunlap's  Paley 's  Agency 4  00 

Duer  on  Insurance,  2  vols 10  00 

Duer's  New  Y'ork  Superior  Court  Re- 
ports, 5  vols 30  00 

De  Hart  on  Courts  Martial 4  00 

English  Law  and  Equity  Reports,  38  vols  95  00 

English  Reports  Digest 5  50 

English  Admiralty  ]{eports,  9  vols 31  50 

Everett's  Orations  and  Speeches,  2  vols. 

Eden  on  Injunctions,  2  vols 10  00 

Edward's  Chancery  Reports,  4  vols 20  00 

Edward's  ou  Receivers,  New  Edition. . .    5  50 

Edward's  on  Bills 5  50 

Edward's  on  Bailments 4  50 

Elliott's  Diplomatic  Code,  2  vols 12  00 

Efiuity  Draftsman 5  50 

English  Common  Law  Reports,  88  vols. 325  00 

English  Common  Law  Index,  2  vols 9  00 

Fearne  on  Remainders,  2  vols 7  00 

Flanders  on  Shipping 4  50 

Flanders  ou  Maratime  Law 3  50 

Greenleaf  on  Evidence,  3  vols 16  50 

Green  leaf  s  Cruise  on  Real  Property,  3 

vols 16  50 

Graham's  Practice,  vol.  1 5  00 

Graham  on  New  Trials,  3  vols 16  00 


(Jreonleafs  Overruled  Caaes, 3  50 

Gale  and  AVhatlev  on  Easements 3  00 

Gowon  Partnership » 4  00 

Graydon's  Forms ^^ 2  50 

(iresley's  E<)uity 1  50 

(iibli's  Korms 2  .OO 

tiordon'K  Digest  U.  S.  Laws. ...!.'.'...,'.     7  50 

Hilhard  on  Mortgajies,  2  vols 10  00 

Howard's  Supreme  Court  Reports,  19 

vols 1Q8  00 

Hill's  New  York  Reports,  7  vols 28  00 

Hilliard  on  lieal  Estate,  2  vols 11  00 

Horttaan's  Chancery  Reports 5  00 

Hoffman's  Legal  Stiidv.  2  vols 5  00 

Hopkins'  Chancery  Itcpoi-ts 5  OO 

IIoward'.sN.  Y.  Practice  Reports,  14  vols  55  00 

Hiim|ilirey's  Precedents,  2  vols 8  (X) 

Iloilnnin's  Legal  Outlines 3  50 

Hiiie  on  Discovery 300 

i I od'uKin's  Chancery  Practice, 3  vols. ..!  10  .50 

ililliard's  American  Jurisprudenc 3  50 

Hilliard  on  Sales 3  oO 

Hill  on  Trustees 5  50 

Holcombe's  Law  of  Dr.  and  Cr 4  00 

Holcombe'.-,-  Leading  Cases 4  00 

Hull's  Treatise 4  50 

Harrison's  Digest,  7  vols 42  00 

Hale's  Pleas  of  tJie  Crown,  2  vols 10  00 

Hindmauh  on  Patents 1  50 

Hilliard  on  JIurine  Insurance 1  50 

Indiana  Re])oits,  8  vols. 45  00 

Jarman  on  Wills,  2  vols. 10  00 

Johnson's  New  York  Reports,  20  vols. .  60  00 

Johnson's  Chancery  Reports,  7  vols 32  00 

Johnson's  Cases,  3  vols 12  00 

Juryman's  Guide '. 2  00 

Jones'  Land  Office  Titles 1  50 

Kentucky  Reports,  40  vols 270  00 

Kent's  Commentaries  Abridged 3  00 

Kaufmaun's  Mackeldey 5  oO 

Kernan's  N.  Y.  Court  ot  Appeals^  Re^ 

ports,  3  vols 12  00 

Louisiana  Reports,  43  vols 305  00 

Louisiana  Digest 9  oO 

Lockwood's  Reversed  Cases 4  00 

Lambert  on  Dower 1  oo 

Law  Library,  22  vols 66  00 

Leading  Cases  in  Equity,  3  vols 13  50 

Law's  U.  S.  Courts 5  50 

MASSACHURETTS   REPORTS. 

Massachusetts  Reports,  17  vols..  51  00 

Pickering's  Reports,  24  vols 120  00 

Metcalf's  Reports,  13  vols. .......  a5  00 

Cushiiig's  Reports,  11  vols 55  00 

Gray's  Reports,  4  vols 20  00 

Minot's  Digest 7  50 

Minot's  Supplement 3  oO 

321  50 


110  00 


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Cushman's  Reports,  7  vols 35  00 

Smedes  and  Marshall's  Reports, ' 

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Smedes'  Digest 5  oo 

Jlatthew's  Presumptive  Evidence 3  00 

McCall's  Forms 2  00 

Monell's  Practice,  2  vols .'.."  8  00 

Mitford's  Chancery  Pleading 5  00 

McCuUoch's  Commercial  Dictionary,  2 

vols goo 

Morris  ou  Replevin ..'... 2  00 

Modern  Probate  of  Wills [ .  5  00 

New  York  Digest,  4  vols 16  50 

Nott's  Mechanic's  Lien  Law 3  00 

New  York  Code  Reporter,  3  vols ."  7  50 

New  York  Code  Reports 2  50 


CATALOGUE    OP    LAW    BOOKS. 


Oliver's  Forms  and  Precedents 5  00 

Owen  on  Bankruptcy 3  50 

Parsons  on  Contracts.  2  vols 11  00 

Parsons  on  Mercantile  Law 5  50 

Parsons-  Laws  of  Business  for  Business 

Men 4  00 

Paige's  Chaucerv  Reports,  11  vols 61  00 

Paine's  C.  C.  Reports,  2  vols 11  00 

Parkers  Criminal  Reports,  2  vols 9  00 

Phillips  and  Amos  on  Evidence,  2  vols.  7  00 

Pothier  on  Partnership 1  00 

Pothier  on  Obligations,  2  vols 8  00 

Pierce"s  American  Rail  Road  Law 5  50 

Peterss  Condensed  Reports.  6  vols a3  00 

Peters-s  Federal  Digest,  2  vols 10  00 

Ray's  Medical  Jurisprudence  of  Insan- 

itv 2  50 

Robb's  Patent  Cases,  2  vols 10  00 

Reeve-s  Domestic  Relations 3  00 

Rockwell's  Spanish  and  Mexican  Law..  7  50 

Russell  on  Crimes,  2  vols 12  00 

Roscoe  on  Criminal  Evidence 5  50 

Roper  on  Legacies,  2  vols 10  00 

Roper  on  Remainders,  2  vols 8  00 

Rawle  on  Covenants  for  Title 5  50 

Story's  Commentaries  on  Agency 5  00 

Story's  Commentaries  on  Bailments. ...  5  00 

Story  on  Bills  of  Exchange 5  50 

Story  on  the  Conflict  of  Laws 6  60 

Story  on  the  Constitution,  2  vols 7  50 

Story  on  Ec]uity  Jurisprudence,  2  vols. .  11  00 

Story  on  Partnership 5  50 

Story  on  Equity  Pleading 6  00 

Story  on  Promissory  Notes 5  50 

Story  on  the  Law  of  Contracts,  2  vols. .  11  00 

Story  on  the  Law  of  Sales 4  50 

Sandford's  Chancery  Reports,  4  vols. . .  20  00 
Sandford's  Superior  Courts  Reports,  5 

vols 26  50 

Saunders'  Reports,  3  vols 12  00 

Smith's  Constitutional  Law 5  00 

Smith's  N.  Y.  Court  of  Appeals  Reports, 

voll 4  00 

Sedgwick  on  Damages 5  50 

Sedgwick  on  the  Construction  of  Sta- 
tutes   5  50 

Seaton's  Forms  of  Decrees  in  Equity 2  50 

Stephen's  New  Commentaries,  4  vols. . .  12  00 

Spence's  Equity  Jurisdiction,  2  vols, ...  9  00 

Smith's  Landlord  and  Tenant 3  00 

Smith's  Leading  Cases,  2  vols 12  50 

Smith's  Real  and  Personal  Property 4  50 

Smith's  Chancery  Practice,  2  vols 6  00 

Sugden  on  Powers,  2  vols 7  00 

Starkie  on  Evidence — New  Ed.  in  Press. 

Sugden  on  Vendors,  2  vols 10  00 


Smith's  Mercantile  Law 4  00 

Seklen's  N.  Y    Court  of  Appeals  Re- 
ports, 5  vols 20  CO 

Selwjn's  Nisi  Prius,  2  vols 11  00 

Sanders  on  Uses  and  Trusts 4  50 

Sanders  on  Pleading  and  Evidence,  3 

vols 15  00 

Taylor's  Landlord  and  Tenant 4  50 

Thornton  on  Conveyancing, 4  50 

Train  and  Heard's  Precedents  of  Indict- 
ments     4  00 

Tillinghast  on  Limitations 3  00 

Taylor  on  Wills.  2  vols 5  00 

Taylor  on  Executors 1  00 

Trial  of  Huntington 3  00 

Tapping  on  Mandamus 3  50 

Troubat  on  Partnership 5  00 

Tinlason's  Leading  Cases 1  CK3 

Tidd's  Practice,  2  vols 11  00 

Taylor's  Law  Glossam' 4  .50 

Texas  Reports,  17  vols 1.36  00 

Tex  a-  1  >i  viM .  .' 12  00 

Uiiiii  d  >ii;t.-;  Digest,  16  vols 93  00 

Uui'.cl  Miitis  Equity  Digest,  2  vols 12  00 

United  States  Statutes  at  Large,  11  vols.  56  00 

United  States  Criminal  Digest 5  60 

"S'oorhies'  New  York  Code,  1857 6  00 

Tan  Santvoord's  Pleading. 5  50 

Vattel's  Law  of  Nations 4  00 

Walker's  Introduction  to  American  Law    5  50 

Walker's  Theory  of  Common  Law 1  25 

Wheaton's  International  Law 6  00 

Wigram's   Points  in  the  Law  of  Dis- 
covery     3  00 

Webster's  Works,  6  vols.,  and  Private 

Correspondence,  2  vols. '. 

Wendell's  New  York  Reports,  26  vols.  .130  00 

Willard's  Equity  Jurisprudence 5  50 

Wheaton's  Law" of  Nations 5  00 

W^heeler's  Criminal  Trials,  3  vols 12  00 

Wharton's  State  Trials. . . .' 6  00 

Williams  on  Personal  Property 4  00 

Williams  on  Real  Property 4  00 

Wills  on  Circumstantial  Evidence 1  50 

White's  Land  Laws,  2  vols 10  00 

AYoolrvch  on  Waters 3  00 

Wende'll's  Blackstone,  4  vols 7  00 

Williams  on  Executors,  2  vols 10  00 

Wilford's  Equity  Pleading 1  25 

Wharton    and    Stille's   Sledical    Juris- 
prudence       6  50 

"Wharton's  Homicide 4  50 

■Wharton's  Precedents 6  00 

Wharton's  Criminal  Law 7  50 

Whittaker's  N.  Y.  Practice,  2  vols 7  50 


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Entered  according  to  Act  of  Congress,  in  the  year  One  Thousand  Eight  Hundred  and 
Fifty-five,  by  Francis  Hilliard,  in  the  Clerk's  Office  of  the  District  Court  of  Massa- 
chusetts. 


PREFACE  TO  THE  FIRST  EDTTION. 


The  following  work  is  designed  to  be  for  the  American  lawyer,  what 
Cruise's  Digest  hitherto  has  been  for  him,  and  still  continues  to  be  for 
the  English  lawyer.  Cruise,  although  undoubtedly  one  of  the  best 
elementary  law  books  that  England  has  produced,  and  although  heretofore 
an  indispensable  part  of  the  library  of  an  American  practitioner,  has 
been  extensively  used  in  this  country,  not  because  it  is  the  book  which 
is  wanted^  but  because  it  is  the  only  one,  in  any  degree  answering  the 
purpose,  which  could  he  had.  It  is  believed  that  the  present  work  is  the 
first  attempt  to  compile  a  book,  upon  the  important  subject  of  Eeal 
Property,  corresponding  in  extent  and  general  plan  with  the  English 
text-book,  and,  at  the  same  time,  thoroughly  American  in  the  materials 
of  which  it  is  composed.  It  may  be  stated-in  few  words,  what  are  the 
chief  characteristics  which  distinguish  this  work  as  strictly  American, 
from  tlie  popular  Abridgment  above  referred  to. 

1.  Cruise's  Digestcontains  a  large  amount  of  matter  which  is  of  no  prac- 
tical use  whatsoever,  to  the  American  lawyer.  It  treats  at  great  length  of 
subjects,  which  either  never  existed,  or  have  become  entirely  obsolete,  in 
this  country.  That  an  occasional  illustration  or  analogy  of  some  value^ 
may  be  derived  from  principles  which  have  no  longer  any  direct  prac- 
tical applicability,  is  not  denied.  But  it  is  obvious,  that  portions  of  the 
law,  which  are  useful  only  in  this  incidental  way,  ought  to  be  treated 
with  proportional  brevity,  and  not  with  the  minuteness  of  detail  which 
is  demanded  in  relation  to  topics  in  their  nature  of  immediate  practical 
use.  Now,  as  an  example  of  the  character  of  Cruise's  Digest,  in  this 
particular,  it  may  be  mentioned,  that,  in  this  work,  the  three  titles  of  J.d^- 
vowson,  Tithes  and  Dignities,  occupy  150  closely  printed  pages ;  Fine,  Be- 
covery  and  Alienation  by  Custom,  about  400  pages  ;  Coi^yhold,  60  pages, 
&c.,  &c.  It  is  not  too  much  to  say,  that  no  such  titles  as  these  are  known 
to  American  law.  Upon  a  strictly  scientific  American  plan,  they  would 
find  no  place  in  a  work  upon  the  American  Laio  of  Ileal  Estate.  But, 
supposing  them,  though  now  obsolete,  or  never  adopted  in  this  country 
to  be  so  closely  connected  with  other  titles  which  are  in  force,  that  they 


671424 


IV 


PREFACE. 


cannot  with  propriety  be  wholly  passed  over ;  still,  there  is  no  propri- 
ety in  filling  up  a  large  space  with  the  intricate  decisions,  formal  classi- 
fications, and  nice  distinctions,  which  appertain  to  them,  as  subsisting 
branches  of  the  English  law.  It  is  certainly  within  bounds  to  say, 
that,  in  purchasing  Cruise  for  the  sake  of  the  matter  ivldch  he  does  want, 
the  Ameiican  lawyer  must  pay  one-third  of  his  money  for  matter  which 
he  does  not  ivant. 

2.  While  Cruise's  Digest  is  thus  ill  adapted  to  the  American  lawyer, 
by  reason  of  surplusage  or  excess^  its  defectiveness  is  equally  striking  and 
apparent.  It  is  obvious,  that  in  the  course  of  forty  years,  an  immense 
mass  of  decisions  must  have  been  accumulating  in  the  United  States, 
upon  subjects  pertaining  to  Real  Estate.  Even  where  these  substan- 
stantially  corroborate  the  principles  of  the  English  law,  they  are  of  par- 
amount importance  to  the  American  lawyer.  And,  for  the  innumera- 
ble modifications,  with  which,  in  the  various  States,  they  qualify  those 
principles,  they  are  still  more  indispensable.  The  present  work  pro- 
ceeds upon  the  plan  of  collecting  the  American  cases,  not  in  the.  way  of 
merely  stating  the  points  decided,  or  copying  the  marginal  notes,  but 
by  summarily  giving  the  facts,  and  often  an  abstract  of  the  opinion  of 
the  court,  either  in  its  own  language,  or  otherwise. '  It  is  believed — 
without  any  accurate  enumeration,  however, — that  two-thirds  of  the 
cases  cited  in  this  work,  are  American  cases ;  v/hile,  at  the  same  time, 
few  or  none  of  the  English  decisions  are  omitted. 

3.  The  remaining,  and  most  important  characteristic  of  the  present 
work,  as  an  American  work,  is,  tliat  it  gives  a  view  of  the  changes  made 
in  this  country  in  the  JEnglish  law  of  Heal  Estate.  Every  lawj'er  is  aware 
that  these  changes  are  vastly  numerous  and  important;  but  perhaps 
few  would  suppose  the  number  or  importance  of  them  to  be  such,  as  a 
careful  inquiry  shows  it  to  be.  Take,  for  an  example,  such  titles  as 
Descent,  Estate  Tail,  Dower,  Mortgage ;  it  is  not  too  much  to  say,  that 
upon  these  subjects  the  English  law  is  riot  our  laiu,  but  that  the  American 
statutes  have  built  up  a  neiu  system  for  the  American  States.  It  is  be- 
lieved, that  in  the  preparation  of  the  present  work,  the  statutes  of  all 
the  States  have  been  faithfully  examined ;  and  that  all  their  provisions, 
bearing  upon  the  subject  of  Real  Property,  will  be  found  stated  cor- 
rectly, and  with  sufficient  minuteness  to  make  the  work  a  safe  and 
satisfactory  guide.  Great  care  has  been  used,  to  avoid  giving  the 
present  work  anything  of  a  local  character  ;  and  to  make  it  alike  appli- 
cable and  useful  in  every  State  of  the  Union,  where  the  common  law  of 
England  is  adopted.  For  an  obvious  reason,  the  State  of  Louisiana  has 
been  omitted.  Should  it  be  deemed  expedient,  the  Law  of  Real 
Property  in  this  State  may  be  hereafter  noticed  in  an  Appendix. 

In  the  multitude  of  statutes  of  the  several  Slates  which  the  author 


PREFACE.  V 

has  examined,  it  would  be  folly  to  pretend  that  none  have  escaped  his 
notice,  pertaining  to  the  suVjjects  treated  of  in  this  book.  He  may, 
however,  be  permitted  to  claim  the  merit  of  a  careful  and  thorough 
investigation  of  all,  or  nearly  all  the  printed  laws  ot  «acli  State,  so  far 
as  the  Indexes,  Contents  and  Alphabetical  Arrangements  have  afforded 
him  any  aid  in  making  it.  It  is  proposed  at  the  end  of  the  second 
volume,  to  form  an  Addenda  of  such,  statutory  provisions  as  may  chance 
to  have  been  overlooked,  and  those  passed  since  the  commencement  of 
the  work.  The  author  will  be  greatly  indebted  to  gentlemen  in  any 
State,  who  will  suggest  by  letter  any  required  alterations  or  additions, 
which  may  occur  to  them  in  the  perusal  of  these  volumes,  with  respect 
to  the  peculiar  laws  of  their  own  States. 

With  the  consciousness  of  having  assumed  a  great  undertaking,  to 
which  he  is  incompetent  to  do  full  justice,  but  at  the  same  time  of  un- 
intermitted  labor  and  strict  fidelity  in  accomplishing  it  according  to  his 
a]bility,  the  author  submits  the  work  to  the  candid  notice  of  the  pro- 
fession. 

Boston,  Jdly  1,  1838. 


PREFACE  TO  THE  SECOND  EDITION. 


In  this  edition,  the  work  has  been  brought  down  to  the  present 
time,  by  the  addition  of  English  and  American  cases  decided,  and 
statutes  enacted,  since  it  was  first  published. 

The  new  matter,  incorporated  into  the  text  and  notes,  enlarges  the 
book  at  least  one-fourth  from  its  original  size.  It  is  believed,  that  by 
this  means,  and  the  correction  of  such  errors  as  have  been  discovered 
in  the  former  edition,  the  work  has  been  rendered  more  worthy,  than 
before,  of  the  patronage  of  the  profession, 

Boston.  ArEiL,  1846. 


PREFACE  TO  THE  THIKD  EDITION. 


In  this  edition,  the  same  plan  is  retained,  which  was  adopted  in  the 
former  editions,  of  making  the  work  a  summary  abstract  of  the  Amer- 
ican Law  of  Real  Property,  as  it  noio  is,  in  the  several  States  of  the 
Union.  With  the  rapid  multiplication  of  remote  States,  each  adopt- 
ing its  own  modifications  of  the  law  relating  to  this  copious  and  intricate 
subject ;  the  difficulty  of  preparing  a  complete  view  of  that  law,  with- 
out important  omissions,  on  a  perfectly  accurate  view,  without  import- 
ant errors,  is  of  course  greatly  increased.  The  author  can  only  repeat 
the  remark  made  with  reference  to  the  first  edition,  that  he  has  had 
access  to,  and  availed  himself  of,  a  large  proportion  of  the  recent 
Statutes  in  the  several  States  relating  to  real  property,  and,  in  as  con- 
cise a  form  as  possible,  stated  their  respective  provisions.  The  English 
and  American  decisions,  also,  made  since  the  last  edition,  have  been 
incorporated  into  the  work,  with  the  purpose  of  making  it  a  manual 
for  professional  use,  which  may  in  part  supply  the  want  of  the  Reports, 
and  always  furnish  a  ready  guide  and  index  to  their  use. 

Boston,  January,  1865. 


CONTENTS. 


CHAPTER  I. 


REAL  PROPERTY  IN  GENERAL, 


41 


1.  4.  Lands,  tenements  and  hereditaments. 
2.  Heir-looms. 

6.  "Water. 

7.  Real  ^stafe— definition. 

8.  Land — what  it  includes. 

12.  Chamber  of  a  house. 

13.  Pews. 

14  Building  on  another's  land. 
29.  Mines. 


30.  Trees. 

36.  Growing  crops. 

41.  Emblements. 

71.  Sea- weed. 

72.  Wreck,  &c. 

73.  Manure. 

74.  Fixtures. 

107.  Shares  in  corporations, 

1 1 0.  Money  to  be  laid  out  in  land. 


CHAPTER  11. 


ESTATES  IN  LAND.     ESTATE  IN  FEE^SIMPLE, 


34 


1.  Estates — meaning  of  the  term. 
5.  Freehold. 

8.  Fee-simple. 

9.  Feudal  law  and  American  tenures. 
16.  Seizin. 

21.  Entry. 

26.  Seizin  of  heirs — Continual  claim. 


31.  Seizin  in  law  and  deed. 

33.  Disseizin. 

45.  Abeyance. 

48.  Freehold  in  futuro. 

50.  Rectors  and  parsons. 

56.  Incidents  to  a  fee-simple. 


CHAPTER  III. 


QUALIFIED  AND  CONDITIONAL  FEES  AND  ESTATES  TAIL, 


56 


1.  Fees,  qualified,  conditional,  &c. 
3.  Estates  Tail — origin. 

5.  Description. 

6.  What  may  be  entailed. 

12.  Rights  and  duties  of  tenant  in  tail. 


18.  Conveyance  by  tenant  in  tail. 
25.  Contracts  of  tenant  in  tail. 

27.  Entailment — how  barred. 

28.  Estates  tail  in  the  United  States. 


Vlll 


CONTENTS. 

CHAPTER  IV. 

ESTATE  FOR  LIFE, 


64 


1.  Definition. 

2.  How  created. 

3.  Different  forms  of  life  estates. 
6.  Merger — estate  ^owr  autre  vie. 
8.  Estovers. 

12.  Praying  in  aid. 


13.  Title  deeds. 

16.  Payment  of  incumbrances. 

22.  Transfer  of  estate. 

23.  Forfeiture. 

40.  Estate  pour  autre  vie. 
56.  Presumption  of  death. 


CHAPTER  Y. 

ESTATE  TAIL  AFTER  POSSIBILITY  OP  ISSUE  EXTINCT, 


74 


1.  Life  estates  created  by  law. 

2.  Estate  tail  after  possibility,  &c. 


3.  Wlien  it  arises. 

8.  Qualities  of  the  estate. 


CHAPTER  VI. 


CURTESY, 


15 


1.  Origin  of  the  name. 

2.  Definition  of  the  estate. 

3.  Curtesy  m  the  United  States. 

4.  Requisites. 

5.  Marriage. 

6.  Seizin. 

13.  Birth  of  issue. 
21.  Aliens. 


22.  Conditional  fees,  &c. 
25.  Money  to  be  converted  into  land. 
27.  Land  to  be  converted  into  money. 
29.  "Wife  must  have  the  inheritance. 

35.  Wild  lands. 

36.  Entry  not  necessary. 

37.  How  barred. 

43.  Effect  of  contract- upon  curtesy. 


CHAPTER  YII. 

LIFE  ESTATE  OF  THE  HUSBAND  IN  LANDS  OF  THE  WIFE, 


84 


1.  Description  of  estate. 

2.  Description  and  incidents. 

4.  Statute  law  as  to  conveyances,  &c. 

6.  Liability  to  creditors. 

7.  Rents  and  profits. 


8.  Contract  by  husband. 

9.  Conveyances  by  husband  and  wife,  and 

statutory  law  relating  thereto. 
21.  Separate  trust  estate  of  the  wife. 


CHAPTER  VIII. 

DOWER.     NATURE  AND  REQUISITES  OF  DOWER, 


93 


1.  Definition  of  dower. 
2-11.  Dower  in  the  United  States. 
10.  Origin  and  history  of  dower. 
12.  Dower  favored. 

17.  Requisites  of  dower. 

18.  Marriage. 

19.  Void  and  voidable  marriage. 

22.  Marriage — how  proved. 

23.  Marriage  and  divorce  in  England. 

20.  Marriage  and  divorce  in  the  U.  S. 


31.  Elopement,  &c. 
38.  Seizin  of  husband. 
42.  Reversions  and  Remainders. 
50.  Dos  de  dote. 
61.  Instantaneous  seizin. 
66.  Whether  husband's  seizin  may  be  de- 
nied. 

68.  Death  of  the  husbaud. 

69.  Presumption  of  death. 


CONTENTS. 

CHAPTER  IX. 


IX 


DOWER.    WHAT  PERSONS  MAY  BE  ENDOWED,  AND  IN  WHAT  THINGS,  109 


1.  Aliens. 

7.  Dower — in  what  things. 

8.  Things  incorporeal. 

9.  Mines  and  quarries. 

12.  Wild  lands. 

13.  State  of  cultivation — what. 

14.  Improvement  or  depreciation  by  heir  or 

purchaser. 
21.  Increase   or   diminution  of  value  from 

extrinsic  causes. 
23.  Land  appropriated  to  public  use. 


25.  Mill  and  flshery,- 

26.  Annuities. 

27.  Lands  held  by  improvement,  &c. 

28.  Lands  contracted  for. 

31.  Slaves. 

32.  Estates  tail,  &c. 

35.  Estates  |)owr  autre  vie. 

36.  Estates  for  years. 

37.  Uses,  &c. 

38.  Wrongful  estates. 


CHAPTER  X. 


DOWER.    HOW  BARRED, 


181 


1.  Inchoate  right. 

2.  Crime  of  husband. 

3.  Detinue  of  charters. 

5.  Transfer  by  the  husband. 

8.  Exchange  of  lands. 

9.  Equitable  bars  of  dower. 
10.  Implied         "  " 

12.  Partition. 

13.  Deed  of  wife  in  England. 

14.  Fine,  &c. 

15.  Deed  of  husband  alone,  and  sale  of  land 

for  debts. 
20.  Deed  of  husband  and  wife. 


32.  Wife's  release,  when  void  in  equity. 

34.  Wife's  release  can  operate  only  as  such. 

35.  Devise  or  legacy,  when  a  bar. 

43.  When  an  implied  bar,  in  law  or  equity. 
54.  Legacy  to  widow,  how  regarded. 

56.  Apportionment  of  legacy. 

57.  Disposal  of  legacy,  when  renounced. 

58.  American  law  as  to  devises  in  bar  of 

dower. 
61.  Election  between  a  devise  and  dower, 

63.  Time  of  election. 

64.  Mode  of  election. 


CHAPTER  XL 


ASSIGNMENT   AND   RECOVERY   OP   DOWER. 

ING, 


FORMS  OF   PROCEED- 


138 


1.  Necessity  of  assignment. 

2.  Nature  of  estate  before  assignment. 

11.  Tenancy  in  common  with  the  heirs,  in 

Massachusetts,  &c. 
14  Assignment  not  required  in  equity. 
18.  Quarantine. 

24.  Assignment  by  the  heir  or  other  tenant. 
30.  Action  at  law  for  dower. 

32.  When  the  only  remedy. 

33.  View. 

34.  Damages. 
37.  Demand. 

41.  Damages,  how  computed. 


44.  Costs. 

45.  Bill  in  equity  for  dower. 

52.  Assignment  by  Probate  Court. 

59.  Forms  of  proceeding. 

61.  How  far  evidence  of  title. 

63.  When    adverse    and    compulsory,    or 

otherwise. 
70.  Application  for  assignment — by  whom. 

73.  Wrong  assignment — how  remedied. 

74.  Assignment — when    it    may    be    de- 

manded. 

75.  Limitation  of  suit  for  dower. 


CONTENTS. 

CHAPTER  XII. 

ASSIGNMENT  OF   DOWER.    WHAT   SHALL   BE   ASSIGNED,  AND   BY 

WHOM;  AND  THE  EFPEOTS  OP  ASSIGNMENT,  -  164 


1.  By  metes  and  bounds  or  otherwise. 
3.  Practice  in  the  United  States. 
T.  Value  of  land  assigned. 
9.  Assignment  in  common. 

12.  Partition  by  husband. 

13.  Assignment  bysheriffand  commissioners. 
15.  Improper  assignment  by  sheriff. 

19.  Assignment  against  common  right 


21.  Assignment  of  rent,  4c. 

23.  Assignment  must  be  absolute. 

24.  Assignment  by  parol. 
27.  Assignment  by  guardian. 
29.  Implied  warranty. 

30  Entry  not  necessary. 
31.  Assignment  has  relation. 


CHAPTER  XIII. 


JOINTURE, 


163 


2.  Definition. 

3.  Origin. 

5.  Value. 

6.  When  to  take  effect. 
8.  Quantity  of  estate. 

11.  Must  be  a  legal  interest. 

12.  Must  be  an  entire  satisfaction. 

13.  And  so  stated. 

15.  Ante-nuptial. 

16.  Provisions  not  strictly  jointures. 
20.  Equitable  jointure. 

23.  Who  may  receive  a  jointure. 


24.  A  provision — not  a  contract 

25.  Infants. 

26.  Waste. 

27.  Emblements. 

28.  Eviction  or  breach  of  covenant ;   and 

the  jointress'  lien  upon  lands. 
38.  Favored  in  equity. 

42.  Interest. 

43.  How  barred — by  deed. 
45.  By  elopement,  &c. 

47.  By  devise,  &c. 

58.  Jointure  in  the  United  States. 


CHAPTER  XIY. 


ESTATE  FOR  TEARS, 


175 


1.  Estate  less  than    freehold — estate    for 

years — lease. 
3.  Definition — "term,"  what  is  a. 

5.  How  created,  and  for  what  time. 

6.  Must  be  certain. 

9.  Executors  and  trustees. 

12.  An  inferior'estate. 

13.  Tenant  not  seized. 

14.  When   it  commences — entry — interesse 

termini. 
18.  In  future. 

22.  How  terminated. 

23.  Is  a  chattel 


26-36.  Limitation  of. 

27.  Husband  and  wife. 
31-5.  Liable  for  debts. 

32  Freehold  cannot  arise  from. 

33.  Incidents. 

34.  Estovers. 
38.  Merger. 
48.  Surrender. 

55.  Assignment  and  under-lease, 
68.  Assignment  by  reversioner. 

77.  Conveyance  of. 

78.  Forfeiture. 


CONTENTS. 

CHAPTER  XV. 

LEASE,       - 


192 


1-2.  Definition. 
3.  Form. 

5.  Presumption  of. 

6.  Words  necessary;   whether  a  contract 

or  a  kase. 
20.  Whether  a  lease  or  an  agency. 

23.  "  "  partnership. 

24 .  Contract  %ipon  shares. 

25.  Lease  in  some  of  the  U.  States, 

27.  Acceptance  of  lease. 

28.  Commencement      and      termination; 

"date"  and  "day  of  the  date." 
32.  "Lease,"  import  of  the  word. 
35.  In  the  alternative. 


37.  Conditional. 

40.  Who  may  lease — tenants  in  tail. 

42.  Husband  and  wife. 

45.  Tenant  for  life. 

46.  Guardian. 

50.  Executor  and  heir. 
52.  Joint  tenants,  &c. 

55.  Infant. 

56.  Avoiding  or    forfeiture  of  lease,  and 

what  will  be  a  conQrmation. 
71.  Covenants. 
78.  Renewal. 
82.  Estoppel. 
101.  License. 


CHAPTER  XVI. 


EBNT, 


.     226 


1.  Definition. 

2.  Must  be  certain. 

3.  In  what  payable. 

4.  Effect  of  a  reservation   of  part  of  the 

produce,    and    whether  the  landlord 
has  a  lien. 

11.  Kinds  of  rent. 

12.  Rent-service. 

13.  Rent-charge. 

15.  Rent-seek. 

16.  Fee-farm  rent. 

17.  Seizin  of  rent. 

18.  From  what  may  it  issue. 

23.  On  what  conveyance  reserved. 

24.  Several  rents  reserved  by  one  deed. 


29.  To  whom  reserved. 

41.  When  payable. 

46.  To  whom  it  passes  upon  the  lessor's 
death. 
52-3.  Remedies  for  recovery  of  rent — dis- 
tress. 

57.  Re-entry. 

62.  Debt  and  covenant. 

63.  Assumpsit. 

65.  Election  of  remedies. 

68.  Restoration  of  land  after  forfeiture ;  at- 

tachment for — before  due. 

69.  Suit  in  Chancery. 

70.  Estates  in  a  rent. 
86.  Not  lost  by  non-user. 


CHAPTER  XVII. 


RENT— DISCHARGE  AND  APPORTIONTMENT, 


249 


1.  General  rule — no  apportionment  as  to 
time. 

4.  Eviction  by  landlord  or  third  persons ; 
from  the  whole  or  a  part  of  the  pre- 
mises. 

7   Constructive  eviction. 

9.  Eviction  by  mortgagee. 

11.  Other  cases  of  eviction. 

12.  What  is  not  an  eviction. 

16.  Loss  by  act  of  God,  &c.— total  or  par- 


tial ;  loss  by  fire ;  debt  and  covenant. 

24.  Purchase  of  the  land  by  landlord — ef- 

fect upon  a  rent  service. 

25.  Descent  to  landlord. 

26.  Apportionment  by  transfer  of  the  land. 
28.  Lease  by  tenant  for  life. 

32.  Rent-charge— when  extinguished  and 

when  not. 
36.  When  apportioned. 


xu 


CONTENTS. 


CHAPTER  XYIIL 


WASTE, 


260 


1.  Importance  of  the  subject. 

2.  American  doctrine. 

3.  Definition. 

4.  Voluntary  or  permissive. 
6.  Felling  timber. 

10.  American  law. 
12.  Waste  of  buildings. 

19.  Loss  by  fire. 

20.  Disturbance  of  the  soil — mines,  &c. 
23.  Conversion  of  the  land. 

25.  Heir-looraa — destruction  of. 
26-59.  Permissive  waste — repairs. 
30.  Act  of  God. 
32.  Amount  of  waste. 


34.  Who  punishable   for — tenant  for  life, 

&c. — Statutes  of  Marlbridge,  &c. 
36.  Ecclesiastical  persons. 
39.  American  doctrine. 
47.  Who  may  sue  and  be  sued  for. 
56.  Waste  by  third  persons. 
58.  Action  on  the  case  for.    • 
f.O.  Injunction  and  other  equity  proceedings. 
68.  Property  in  timber  cut.  &c- — who  has; 

'contingent  remainders,  &c. 
16.  Cutting  of  timber  by  order  of  court. 
80.  Lease  without  impeachment  of  waste,  &c. 
92.  Special  provisions  as  to  waste  in  the 
United  States. 


CHAPTER  XIX. 

ESTATE  AT  WILL  AND  AT  SUFFERANCE, 


1.  Estate  at  will — definition. 

2.  Incidents. 

3.  Estate  from  year  to  year — notice  to  quit. 
5.  Estate  at  will,  whether  assignable,  &c. 


6.  How  terminated. 

18.  Notice  to  quit,  &c. 

22.  Statute  of  frauds. 

27.  Tenant  at  sufferance 


273 


CHAPTER  XX. 

USES  AND  TRUSTS.     USES  PRIOR  TO  THE  STATUTE  OP  USES,    -     290 


1.  Origin. 

3.  Nature  and  definition  of. 
7.  The  three  incidents  of. 
11.  Who  might  be  seized  to. 


12.  How  distinguished  from  legal  estates. 
23.  Evils  and  mischiefs  of,  and  statutes  to 
prevent. 


CHAPTER  XXI. 


USES  AND  TRUSTS.     STATUTE  OF  USES,  CONSTRUCTION  AND  EFFECT 

THEREOF,    -  -  -  -  -     294 


1.  Terms  of  the  statute. 

2.  Adopted  in  the  United  States. 

3.  Instantaneous  seizin  of  trustee. 

4.  Who  may  be  seized  to  uses. 

7.  What  estate  may  be  held  to  uses. 

9.  There  must  be  a  cestui  in  esse. 
10.  What  estate  a  cestui  may  take. 
12.  Feoffee  and'cestui  must  be  different  per- 


sons; construction  where  they  are 
the  same. 

14.  Exceptions  to  the  rule. 

15.  There  must  be  a  use  «i  esse. 

16.  Actual  seizin  vests  in  cestui.' 

17.  Estate  of  feoffee  will  not  merge. 

20.  Limitations  to  uses,  how  far  subject  to 

common  law  rules. 
22.  Implied  and  resulting  uses. 


CHAPTER   XXII. 

TRUSTS,   EXPRESS   TRUSTS. 


297 


1.  Trusts  in  general. 

3.  Trusts  in  real  estate. 

4.  Uses  preferred  to. 

5.  Classifications  of  trusts. 


8.  How  created — use  upon  a  use. 

11.  Where  the  uses  require  a  legal  estate  in 

the  trustee. 

12.  Intention  of  parties. 


CONTENTS, 


Trusts  of  married  women. 

Limitations  with  authority  to  mortgage, 
&c. 

Trust  ceases  when  the  objects  are  affect- 
ed. 
32.  Or  when  the  cesi«i  alienates. 


27 


34-  Lands  subjected  to  payment  of  debts — 
not  necessarily  a  trust  estate. 

36.  "Where  the  estate  is  less  than  freehold — 

a  trust. 

37.  Express    trust,    how  created — statute 

of  frauds,  &c.  — Tiefed  not  be  declared, 
but  only  proved,  by  writing. 


CHAPTER  XXIII. 


TRUSTS.     IMPLIED  AND  RESULTING-  TRUSTS, 


310 


9. 
10. 
12. 

28. 
34. 
36. 
40. 


Implied  trusts — not  within  the  statute 

of  frauds. 
How  proved. 
General  classification  of. 
Distinction  between  an  express  and  im- 
plied trust. 
Cannot  contradict  a  deed. 
Contract  to  convey  land. 
Purchase  by  one  person  with  the  money 

of  another ;  parol  evidence,  &c. 
Cases  not  within  the  rule. 
Aliens. 

Rules  in  different   States. 
Purcliase  with  trust  money. 


43.  Election  of  cestui. 

44.  Conveyance  without  consideration. 
49.  Declaration  of  trusts  in  part. 

53.  Oon.sideration  to  be    determined  after- 

wards. 

54.  Trusts  illegal,  &c. 

55.  Trusts  failing  or  exhausted. 

56.  Trusts  to  be  afterwards  appointed. 

57.  Renewal   of    leases,    &c.,    in    trustee's 

name. 

64.  Conveyance  obtained  by  fraud. 

65.  Conveyance  to  a  father  in  the  name  of 

a  child. 
82.  Conveyance  to  husband  and  wife,  &c. 


CHAPTER  XXIV. 

TRUSTS.     NATURE,  ETC.,  OP  A  TRUST  ESTATE, 


327 


1.  Analogous  to  legal  estates. 

2.  Alienation  of 

3.  Curtesy. 
9.  Dower. 

16.  Subject  to  debts. 

28.  Merger. 


29.  Actions  by  and  against  the  cestui,  &c. 
36.  Conveyance  of  the   legal  estate,  when 

presumed. 
39.  Trust,  how  affected  by  lapse  of  time, 

and  the  statute  of  limitations. 


CHAPTER  XXY. 

TRUSTS— CESTUI  AND  TRUSTEE.— THEIR  RESPECTIVE  INTERESTS,  RIGHTS 
AND  DUTIES,  AS  BETWEEN  THEMSELVES,  AND  IN  RELATION  TO  THIRD 
PERSONS,  -  -         .        -  -  -  .  -     339 


1.  Incidents  of  a  trust — right  of  cestui  to  a 
conveyance. 

5.  Cestui  not  prejudiced  by  any  act,  &c.,  of 

trustee. 

6.  Change  of  estate  by  trustee. 

7.  Executory  agreement — binding  in  favor 

of  cestui. 

8.  Conveyance  by  trustee  to  third  persons — 

notice  of  trust,  &c. 
22.  Authorized  sale  by  trustee — liability  of 
purchaser  to  the  cestui. 

37.  Joint  trustees — conveyances  and  receipts 

by. 

38.  Liability  of  trustee  to  cestui.    Release  of 

debts. 

39.  Sale  of  land. 

40.  One  trustee,  whether  liable  for  another. 


41.  For  what  amount  trustees  shall  account. 

42.  Exchange  of  lands. 

43.  Cestui's  remedy  against  trustee. 

44.  Compensation  and  allowance  to  trustee. 
49.  Trustee  shall  not  purchase  the  trust  es- 
tate. 

68.  Exceptions. 

73.  Disclaimer  and  release  by  trustee. 

75.  Trustee  cannot  delegate  his  power. 

76.  Statutory  provisions  as  to  joint  trustees. 

77.  Joint  trustees  in  New  York. 

78.  Chancery   may    remove,    appoint   new 

trustees,  &c. 

81.  Descent  of  trust  to  heirs. 

82.  Who  may  bo  trustees. 

83.  Trust /a^fen.?  on  the  estate. 
85.  How  affected  by  escheat,  &c. 


XIV 


1.  Trust  terms. 


CONTENTS. 

CHAPTER  XXYI. 

TRUST  TERMS.     TRUSTS  IN  NEW  YORK. 

I      9.  Trusts  in  New  York. 


-  368 


CHAPTER  XXVIT. 

ESTATE  ON  CONDITION.     NATURE  AND  KINDS  OF  CONDITIONS.      363 


1.  Definitions. 

2.  Implied  or  express. 

4.  Precedent  or  subsequent. 

11.  May  belong  to  any  estate. 

12.  Tilings  executed  and  executory. 

13.  Must  determine  the  whole  estate. 
15.  To  whom  reserved. 

18.  Impossible  conditions. 

19.  Illegal  conditions. 


20.  Repugnant  conditions. 

23.  Cannot  be  made  void  by  a  change  in 
the  law. 

25.  Repugnant  obligations. 

28.  Condition  against  assignment  of  lease. 

38.  Confession  of  judgment,  whether  a  trans- 
fer. 

40.  For  re-entry,  in  case  of  insolvency. 

43,  In  restraint  of  marriage. 


CHAPTER    XXYIII. 

ESTATES  ON  CONDITION— PERFORMANCE,  BREACH,  DISCHARGE,  ETC , 

OF  CONDITIONS, 37T 


1.  Performance — conditions  precedent  and 

subsequent. 

2.  Performance  as  far  as  possible. 

3.  Copulative  condition. 
5.  Wlio  may  perform. 

9.  When  performed. 
12.  Place. 

14.  Who  bound  by. 

15.  Impossible  conditions. 

20.  Refusal  to  accept  performance,  &e. 


23.  Breach  and  forfeiture  at  law ;  condi- 
tion and  covenant,  &c. 
28.  Relief  in  equity. 
36.  Breach,  how  taken  advantage  of. 
42.  Breach,  who  may  take  advantage  of. 
49.  Effect  of  entry. 
51.  Waiver  of  condition. 

53.  Release  of  condition. 

54.  Accord  and  satisfaction. 

55.  Condition  and  Limitation — distinction. 


CHAPTER  XXIX. 

MORTGAGE— NATURE,  FORM  AND  EFFECT  OF  A  MORTGAGE, 


391 


1.  Definition  and  history  of  mortgages. 

4.  Right  of  redemption. 

5.  In  fee  or  for  years. 

6.  Deed  and  defeasance. 

20.  What  constitutes  a  mortgage  in  Chan- 
cery. 


23.  Personal  liability  of  mortgagor. 

26.  Right   of  redemption  cannot    be    re- 
strained ;  mortgage  and  conditional 
sale,  distinction  between. 
47 .  Power  to  sell,  given  to  a  mortgagee. 


CHAPTER  XXX. 

MORTGAGE— WHAT  ESTATE  IT  CREATES  IN  THE  MORTGAGOR  AND 

THE  MORTGAGEE,  -  -  -  -     404 


1.  Estate  remains  in  the  mortgagor,  as  to 
third  persons,  but  not  as  to  the  mort- 
gagee. 

7.  Mortgagee  may  take  possession,  when. 

8.  Agreement  for  mortgagor's  possession. 

16.  Mortgagor  in  possession,    nature  of  his 

estate — tenancy  at  will,  &c. 

17.  Cannot  commit  waste,  but  not  boundto 

repair. 


18 


Lease  by  mortgagor  before  or  after  the 
mortgage  ;  rights  of  the  lessee  and 
mortgagee. 

Mortgagee  of  leasehold,  liable  on  cov- 
enants. 

35.  Waste  by  mortgagee. 

36.  Lease  by  mortgagee. 


34 


CONTENTS. 

CHAPTER  XXXI. 


XV 


EQUITY   OF   REDEMPTION— NATURE  OF   THE   ESTATE— WHO    MAY 

RKDKEM,  ETC.,    -         -  -  .-  -     413 


1.  Distinction   between   an   equity  of  re- 

demption and  a  trust. 

2.  Mortgagor  has  seizin. 

3.  Curtesy. 

4.  Dower. 

8.  Whetiier  assets. 

9.  Subject  to  legal  process. 

12.  Who  may  redeem. 

13.  Subsequent  incumbrancers. 
16.  Dowress,  &c. — on  what  terms. 


22.  The  crown. 

23.  Whether   the   whole   debt   must  be 

paid. 
25.   Tacking. 

29.  Unknown  in  United  States. 

30.  Future  advances,  &c. 
38.   Tn/ie  of  redemption. 

43.  No  redemption  in  case  o^  fraud. 
45.  Terms  of    redemption — account — re- 
pairs— interest,  &c. 


CHAPTER  XXXII. 

MORTGAGE— ESTATE  OF  A  MORTGAGEE— SUCCESSIVE  MORTGAGEES 

OF  THE  SAME  LAND,      -  •  -  -     42[! 


1.  Mortgage — personal   estate — passes   to 

executors,  &c. 
4.  Devise  of  mortgagee. 
8.  American  doctrine. 
1.  Assignment  of  mortgage  is  the  transfer 
of  an  estate. 
13.  Mortgage  and  debt  may  be  separated. 
15.  Interest  of  mortgagee,  not  liable  to  ex- 
ecution. 
18.  Statute  of  limitations,  and  lapse  of  time. 
23.  Insurance. 


24.  Second   mortgagee — general    princi- 

ples. 

25.  Rights  of,  not  affected  by  transactions 

between  first  mortgagee  and  moVt- 
gagor. 

27.  Assignment  of  first  mortgage. 

28.  Mortgage  to  several  persons  by  one 

deed. 

30.  Equitable  interference  for  subsequent 

mortgagee. 

31.  Fraud. 


CHAPTER  XXXill. 

MORTGAGE— ASSIGNMENT,  PAYMENT,  RELEASE,  ETC.,  OP   MORTGAGES, 

AND  TRANSFERS  OF  EQUITIES  OF  REDEMPTION,    .  .    438 


1.  Mortgage  cannot  be  assigned  without 

the  debt. 

2.  Assignment  cannot  prejudice  the  mort- 

gagor— notice,  &c. 
6.  Mortgage  an  incident  to  the  debt — prin- 
ciple considered — and  whether  pay- 
ment revests  the  estate  in  the  mort- 
gagor. 

15.  Discharging  mortgage  upon  the  record. 

18.  Release  of  equity — whether  a  payment. 

21.  Release  of  mortgage — release  in  part. 

23.  Deposit  of  money  with  mortgagee — no 

payment. 

24.  Death   of  mortgagor  does  not   turn   a 

mortgage  into  payment — practice  in 
case  of  insolvency. 


25.  Discharge  of  execution — not  conclu- 

sive of  discharge  of  mortgage. 

26.  Payment  on   mortgage,  cannot  be  ap- 

plied to  other  debts. 

28.  Substituting  of  one  security  for  another, 
&c. — in  general,  no  payment  of 
mortgage. 

34.  Assignment  and  discharge  of  mortgage 
— when  a  transfer  will  be  construed 
as  an  assignment,  and  when  as  a 
charge. 

54.  Satisfied  mortgage — whether  a  stran- 
ger may  set  it  up. 

56.  Sale  by  mortgagee  with  mortgagor's 
consent. 

58.  Joint  releaseto  mortgagee  &  mortgagor. 


CHAPTER  XXXIV. 

MORTGAGE— FROM  WHAT  FUND  TO  BE  PAID, 


450 


1.  Debt  paid  from   the  fund  benefited — 

executor  and  heir. 

2.  Mortgage  by  father  and  son. 

3.  Devised  lands. 

6.  Personal   estate  may  be   expressly  ex- 
empted. 


8.  Exceptions  to  the  rule  of  applying  the 

personal  estate. 

9.  Rule  in  New  York. 

10.  In  Pennsylvania. 

11.  Recapitulation  of  cases. 

41.  Application  of  payments  iu  equity. 


xvi  CONTENTS. 

CHAPTEE  XXXY. 

SALE  OF  EQUITIES  OF  REDEMPTION  ON  EXECUTION, 


459 


1.  Estate  of  mortgagor — universally  liable 

to  execution. 

2,  Effect  of  sale — mortgagor's  right  after 

sale. 

7.  Levy  upon  two  executions. 

8.  Levy  in  case  of  disseizin. 

9.  No  ouster  of  mortgagee. 

1 0.  Purchaser  becomes  seized. 


12.   Attachment  of  equity — mortgage  dis- 
charged before  sale. 
15-21.  Redemption    from  purchaser — when, 
and  on  what  terms. 
16.  Fraudulent  mortgage;  sale  of  equity 

void. 
18.  Right  to   redeem    subsequent  mort- 
gages. 


CHAPTER  XXXVI. 

MORTGAGE,  WHEN  VOID  OR  VOIDABLE, 


466 


1.  General  remarks. 

2.  Usury. 
11.  Infancy. 


13.  Eviction. 

14.  Fraud. 


CHAPTER  XXXVn. 

MORTGAGE— REMEDIES  OF  MORTGAGEE  AND  MORTGAGOR  AT  LAW,  471 


1.  Distinction   between   a   mortgage    and 

trust  as  to  remedy. 

2.  Action  at  law  by  mortgagor,  after  pay- 

ment. 

4.  Action  at  law  by  mortgagee,  after  pay- 

ment. 

5.  Concurrent  remedies. 

6.  Form  of  judgment  for  mortgagee. 

8.  Possession  under  a  judgment,  no  pay- 
ment 


9.  Title  of  mortgagee  under  a  third  per- 
son, no  payment. 
11.  No  action  at  law  by  mortgagee  in  New 
York  and  South  Carolina. 

13.  Tender  in  court  by  mortgagor. 

14.  Suit  by  execution  purchaser. 

15.  Assumpsit  by  mortgagor. 

16.  Remedy  by  scire  facias,  &c. 
21.  Commitment  of  mortgagor. 


CHAPTER  XXXVIII. 

MORTGAGE— REMEDIES  IN  EQUITY— FORECLOSURE  AND  REDEMP- 


TION, 


477 


1-14.  Lapse  of  time. 

2.  General  principles  of  foreclosure. 
5-24.  Massachusetts. 
9-30.  Maine. 

11.  New  Hampshire. 

13.  Rhode  Island. 

16.  Vermont  and  Connecticut. 

17.  New  York. 

19.  New  Jersey. 

20.  Georgia. 

21.  North  Carolina. 


22.  Ohio  and  Tennessee. 

31.  Foreclosure — whether  payment  of  debt, 

&c. 
40.  Right  of  redemption  may  be  revived. 
44.  Mortgage  cancelled  by  mistake. 

46.  Equity  will  not  relieve,  where  there  is 

a  legal  right. 

47.  Fraud. 

48.  Payment  into  court. 

49.  Mortgagor  cannot  redeem  on  payment 

by  a  third  person. 


CHAPTER  XXXIX. 

MORTGAGE— EQUITABLE  MORTGAGES  AND  LIENS, 


490 


1.  Deposit  of  title  deeds. 
9.  Lien  for  purchase-money. 


45.  Lien  of  purchaser  after  payment. 


CONTENTS. 

CHAPTER  XL. 


XVI I 


LIEN  OP  MECHANICS,  ETC.,  FOR  LABOR  AND  MATERIALS, 


500 


1.  Lien  by  legal  process. 

2.  Lien  of  mechanics,  &c. 

3.  Massachusetts. 

4.  Connecticut. 

5.  New  Hampshire. 

6.  Rhode  Island. 
T.  Maine. 

8.  Pennsylvania. 

9.  Ohio. 
10.  Indiana. 


11.  Illinois. 

12.  Missouri. 

13.  Tennessee. 

14.  Kentuclty. 

15.  Micliigan. 
IG.  Arl^ansas. 

17.  Mississippi. 

18.  Georgia. 

19.  Alabama. 


CHAPTER  XLI. 

REMAINDER— VESTED  AND  CONTINGENT  REMAINDERS, 


512 


1.  Definition — cannot  be  after  a  fee. 

4.  By  what  words  created. 

5.  Vested  or  contingent. 
1.  "When  contingent. 

9.  Classification  of  contingent  remainders. 
20.  Exception  to  third  class — limitation  for 
a  long  term — remainder  after  the  ter- 


mination of  life. 
24.  Limitation  after  a  life,  where  the  term 

for  years  is  short. 
28.  Exceptions  to  fourth  class — Shelley's 

case — "  designatio  personce,^^  &c. 
34.  Ch.    J.  Willes'  division  of  contingent 

remainders. 


CHAPTER  XLII: 


REMAINDER— VESTED  AND  CONTINGENT  REMAINDERS, 


518 


I.  Contingency  of  remainder  depends  on  a 

present  capacity  of  taking  effect. 

2.  Law  favors  vested  remainders. 

4,  Remainder  may  be  vested,  though  not 
to  take  effect  upon  every  possible  ter- 
mination of  prior  estate. 

7.  Intervention  of  contingent  estate — re- 
mainder not  thereby  contingent,  un- 
less the  estate  is  a  fee. 

II.  Contingent  estates  may  be  devised,  as 

substitutes  for  each  other. 

17.  Cross  remainders. 

18.  Prior  limitation  to   trustees  and   their 

heirs  till  a  certain  event. 
20.  Where   one  of  concurrent  remainders, 
Ac,  vests — rest  defeated. 


21.  Successive   remainders  —  whether  the 

contingency  named  affects  only  one 
or  the  whole. 

22,  Limitation  after  an  estate,  depending 

on  a  contingency  which  never  liap- 
pens. 
28.  After  the  conditional  termination  of  an 
estate,  wliich  never  takes  effect. 

30.  After  the  conditional  termination  of  an 

estate  which  takes  effect,  but  termi- 
nates otlierwise. 

31.  "Words  importing  not  a  contingent  re- 

mainder, but  when  a  remainder  shall 
come  into  possession. 
45.  Remainder  upon  condition  subsequent. 


CHAPTER  XLin. 

REMAINDER— VOID  CONDITIONS, 


530 


2.  Illegality. 

4.  Remoteness  of  probability. 
7.  Abridgment,  &c.,  of  preceding  estate. 
14.  Or  of  preceding  remainder. 


16.  Exception — enlargement  of  prior  estate. 
19.  Devise — conditional  limitation. 
23.  Limitation  by  way  of  use. 


XVlll 


CONTENTa 

CHAPTER  XLIV. 

REMAINDER— BY  WHAT  ESTATE  SUPPORTED, 


534 


1.  Continfrent  freehold  remainder  must  be 
limited  on  a  freehold. 

4.  Contingent  remainder  for  years. 

5.  Possession  not  necessary — a  right  of  en- 

try sufficient — to  sustain  a  remainder. 


9.  Both   estates  must   be  created  by  one 
instrument. 
13.  Estate  of  trustees  sufficient  to  support 
remainder. 


CHAPTER  XLY. 

REMAINDER— AT  WHAT  TIME  IT  SHALL  VEST, 


536 


1.  Remainder  must  vest  during,  or  imme- 
diately upon  termination  of,  the  prior 
estate. 

5.  Subsequent  revival  of  prior  estate  does 
not  render  valid  the  remainder. 


6.  Remainder  void,  though  a  prior  estate 

for  years  continues. 
9.  Posthumous  child. 

12.  Vested  remainder  not  affected  by  defeat 

of  prior  estate. 

13.  Remainder  may  become  void  in  part. 


CHAPTER  XLVI. 

REMAINDER.     REMAINDER  BY  WAY  OF  USE, 


538 


2,  Since  the  statute  of  uses,  a  freehold 
trust  necessary  to  support  contingent 
remainders. 

4.  Preceding  trust  must  continue  till  the 
contingency  happens. 


6.  Resulting  trusts  sufficient  to  support  re- 

mainders. 

7.  Contingent   uses  arise  out  of  seizin  of 

trustees — discussions  upon  this  sub- 
ject— Chudleigh's  case,  &c. 
14.  Springing  and  shifting  uses. 


CHAPTER  XLVII. 

REMAINDER— HOW  DEFEATED, 


543 


By  destroying  the  particular  estate.  f  tinction  of  cases. 

Whet'ier  by  a  mere  change  of  estate.  10.  Remainder  by  way  of  use,  how  destroy- 

Where  the  particular  estate  and  a  subse-  ed  ;  whether  actual  seizin  necessary, 

quent  remainder  unite,  whether  con-  &c. 

tingent  remainders  destroyed.     Dis- 1  19,  American  opinions  and  cases. 


CHAPTER  XLVIII. 

REMAINDER.    TRUSTEES  TO  PRESERVE  CONTINGENT  REMAINDERS,     549 


1.  Origin  and  history. 

3.  Trustees  take  an  estate. 

4.  May  destroy  the  remainders ;  but  it  is  a 

breach  of  trust. 

5.  Exceptions — remote   relations  may  be 

barred. 
7.  If  remainder-men  join  ;    no   breach   of 
trust. 


8.  Chancery  sometimes   directs  a  convey- 
ance in   favor  of  mortgagees,    credi- 
tors, &c. 
12.  But  generally  will  not  interfere. 

16.  Trustees  cannot  safely  defeat  the  remain- 

ders. 

17.  Power  and  duty  in  case  of  waste. 


CONTENTS. 

CHAPTER  XLIX. 


XIX 


REMAINDER— DOCTRINE   OP   ABEYANCE— CONDITION   OF   THE  PEE 
IN  CASE  OP  CONTINGENT  REMAINDERS,  -       •     - 


534 


1.  Limitations  to  uses — use  results. 
4.  Liinitatioa  by  devise. 


10.  Limitation    by    common    law    convey- 
ance. 


CHAPTER  L. 

REMAINDER.     ALIENATION,  ETC.,  OF  CONTINGENT  REMAINDERS,   -     556 


1.  Vested  remainders  alienable,  &c. 

2.  Contingent  remainders   said   to   be  de- 

scendible and  devisable. 


10.  Cannot  be  conveyed  at  law,  but  may  be 
in  equity,  and  may  pass  by  estoppel. 

15.  Transfer  to  creditors. 

16.  General  remarks. 


CHAPTER  LI. 


REMAINDERS  IN  NEW  YORK, 


560 


1.  Expectancies.    Remainders  vested  and 
contingent. 

6.  Fee  upon  a  fee. 

7.  Remainder  after  estate  tail. 

8-18.  Ifbmainder  after  estate  for  life  or  for 
years. 


13.  Remainder  not  barred  by  destruction  of 

prior  estate. 

14.  Not  void  for  improbability. 

15.  Remainder  to  heirs. 

16.  Contingency  may  abridge  prior  estate. 

17.  Limited  application  of  the  statute. 


CHAPTER  LII. 


REVERSION, 


563 


1.  Definition  and  principle  of  the  estate. 

3.  An  incorporeal  hereditament. 

4.  After  conditional  fee,  &c. 
6.  After  base  fee. 

6.  After  estate  for  years. 

7.  May  belong  to  a  particular  tenant,  who 

underlets. 

8.  Created  by  act  of  law. 


9.  Subject  to  same  rules  with   estates  in 

possession. 
10.  Actions  by  reversioner  for  injuries  to  the 

land. 
21  Rights  of  reversioner  in  case  of  adverse 

possession. 
27.  Reversion,  how  far  liable  for  debts.^ 
34.  Transfer  of  reversion — when  set  aside. 
45.  Miscellaneous  provisions. 


CHAPTER  Lin. 


JOINT  TENANCY, 


574 


1.  Number  and  connection  of  the  owners 

of  real  estate. 
3.  Joint  tenancy,  how  created. 
6.      "        "         in  a  remainder. 
8.      "        "         for  lives,  and  several  in- 
heritances. 

12.  Unities  necessary  to  joint  tenancy. 

13.  Unity  of  interest. 

14.  "     "   title. 


16.  Unity  of  time. 

22.  "      "  possession. 

23.  Survivorship. 

24.  Exceptions  to  the  rule  of  survivorship. 
34.  Who  may  be  joint  tenants. 

45.  Not  subject  to  charges  made  by  one. 

46.  Except  by  lease. 

52.  Severance  of  joint  tenancy. 


XX 


CONTENTS 


CHAPTER  LIY. 


TENANCY  IN  COMMON,    - 


584 


1.  Tlirre  f(  rms  oi  joint  ownership  in  Eng- 

land. 

2.  Co-parcemiry ;  obsolete   in  the   United 

States. 

5.  Tenancy  in  common,  what. 

6.  Joiiit  tenancy  favored  in  England,  but 

discountenanced  in  the  United  States; 
statutory  provisions  changing  it  into 
tenancy  in  common. 
]  5.  Exceptions — husband  and  wife. 


20.  Joint  mortgagees. 

25.  Trustees  and  executors. 

26.  Statutes  apply  to  vested  estates. 
30.  Legislative  grants. 

34.  Estate  in  common  subject  to  the  same 
rules  with  a  several  estate. 

37.  But  a  tenant  cannot  convey  by  metes 
and  bounds. 

47.  General  rights  and  remedies  of  tenants 
in  common,  &c. 


CHAPTER  LV. 


TENANCY  IN  COMMON,  ETC.— PARTITION, 


603 


1.  Methods  of  partition. 

2.  Statutes  of  the  several  States  concern- 

ing. 

3.  In  the  New  England  States. 
9.  New  York. 

10.  Pennsylvania. 

11.  New  Jersey,  Alabama  and  Mississippi. 

12.  Maryland. 

13.  Delaware. 

14.  Tennessee. 


15.  Illinois. 

16.  Indiana. 

17.  Missouri. 

18.  Kentucky. 

19.  Ohio. 

20.  Virginia. 

21.  North  Carolina. 

22.  South  Carolina. 

23.  Georgia. 

24.  Miscellaneous  decisions. 


CHAPTER  LVL 


WORDS  NECESSARY  TO  CREATE  ESTATES.     WORDS  NECESSARY  IN  A 
DEED  TO  CREATE  A  FEE-SIMPLE  OR  A  FEE  TAIL,       - 


617 


1.  Introductory  remarks. 

2.  Htirs  necessary  in  a  deed. 

5.  Origin  of  the  rule. 

6.  Exceptions — conveyance  lo  a  corpora- 

tion. 

8.  Omission  of  the  word/n's — the  word  heir. 

9.  One  clause  may  afl'ect  another. 

10.  Words  of  reftrence. 

11.  Releases. 

12.  Rule  in  equity. 


13.  Eeirs  necessary  to  estate  tail. 

15.  Of  the  body — not  necessary. 

16.  Heirs  males. 

18.  Issue  past  and  future. 
19-30.  Heirs  of  one  deceased. 
20.  Premises  and  habendum. 

23.  Remainder  on  failure  of  heirs. 

24.  Limitations  to  husband  and  wife,  &c. 
31.  Rule  in  the  United  States. 


CHAPTER  LYII. 


WORDS  IN  A  DEVISE   NECESSARY  TO  CREATE    A  FEE-SIMPLE  OR  AN 

ESTATE  TAIL,     ...  -  - 


622 


1.  General  principle. 

2.  What  words  sufBcient. 
4.  Power  to  sell. 

14.  Devise  for  cliildren,  &c. 

18.  Reference  to  otlier  provisions. 

22    Introductory  words. 

29.  "Estnie,"  &c.,  meaning  of  terras. 

43'  Devise  charged  with  debts,  &c. 


56.  Devise  over,  on  devisee's  dying  under 

age. 
61.  Devise  to  trustees. 

66.  Devise  of  wild  lands. 

67.  Estate  tail,  by  what  words  created. 

70.  Debts  charged  upon. 

71.  Remainder  after  a  devise  in  fee,  &c. 
96.  Enlargement  of  life  estate. 

110.  Rule  in  United  States. 


CONTENTS. 

CHAPTEE  LVIII. 


XXI 


THE  RULE  IN  SHELLEY'S  CASE, 


640 


1 
3-5 


History  of  the  rulo — Shellei/s  case. 
EHect  of  intervening  estates  between 
the  ancestor  and  heirs. 
4.  Life  estate  by  implication. 
6.  Joint  or  several  life  estate  and  inherit- 
ance— husband  and  wife,  &c. 
8.  Two  estates  created  by  distinct  instru- 
ments. 
13.  Union  of  legal  and  equitable  estates. 
15.  Use  of  the  words  isstie,  children,  &c. 
18.  Marriage  articles. 

31.  Rule  applies  to  devises,  notwithstand- 
ing other  provisions  implying  a  con- 
trary intent. 


37.  Heir,  next  heir  jraale,  words  of  subse- 
quent limitation  added  to  the  word 
heir,  &c. 

48.  Trusts,  executed  and  executory — dis- 
tinction. 

56.  Terms  lor  years. 

62.  Distinction  as  to  subsequent  words  of 
limitation. 

68.  Rule  where  the  heirs  are  to  have  only 
a  lile  estate. 

70.  Issue,  effect  of  the  word. 

81.  Union  of  trust  and  legal  estate. 

90.  Case  of  Perrin  v.  Blake. 

95.  American  doctrine. 


CHAPTER  LIX.. 


JOINT  TENANCY,  ETC.,  HOW  CREATED, 


660 


2.  Joint  tenancy,  &c.,  by  deed. 

8.  Rule  in  United  States. 
11.  Trust,  how  created  by  deed. 
13.  Cross-remainders  by  deed. 


24.  Joint  tenancy,  &c.,  by  devise. 
36.  Gross-remainders  by  devise. 
53.  Condition,  &c.,  by  devise. 


YOL  I 


TABLE  OF  CASES  CITED  IN  VOL.  ONE. 


A 

Allen  V.  Culver 
Hall 

236, 

256 
600 

Abbe  V.  Newton 

468 

Holton 

44, 

592 

Abbot  V.  Bokenham 

65 

McCoy 

112 

Burton 

297 

McKean 

1 

Abbott  V.  Sturtevant 

464 

McRae 

391 

Upton 

444 

Parish 

460 

Abergavenney's  case 

119,  581,  584 

Parker 

406 

Abingdon's  case 

158 

Thayer 

217 

Abraham  v.  Twlgg 

619 

Wooley 

192 

Acey  V.  Simpson 

132 

Allyn  V.  Mather 

62 

Acker  v.  Ledyard 

230 

Alpass  V.  Watkins 

642 

"Witherell 

189 

Alsherr  v.  Hawkins 

107,  109, 

no 

Ackland  v.  Ackland 

630,  631 

Altemas  v.  Campbell 

42 

Atwell 

267 

Long 

43 

Lutley 

68,  184,  633 

Altersoll  v.  Stevens 

566 

Pring 

179,  633 

Altham  v.  Anglesea 

299 

Tulley 

76 

Altimus  V.  Elliott 

347 

Ackless  V.  Seekright 

630,  633,  634 

Amand  v.  Bradburn 

347 

Adair  v.  Lott 

78,  335 

Ambler  v.  Norton 

165 

Adams  v.  Adams 

137 

"Weston 

167 

Barnes 

467 

Ambrose  v.  Ambrose 

330 

Barrow- 

158 

American,  &c.  v.  Dyett 

92 

Brown 

427 

Pringle 

508 

Bucklin 

232,249 

Ameriscoggin  v.  Bragg 

222 

Croft 

59,  650,  657,  659 

Amidown  v.  Peck 

477 

Dunklee 

384 

Amis  V.  Amis 

615 

French 

179,  189 

Amory  v.  Carpenter 

614 

Frothingham 

661 

Francis 

443 

Paynter 

478 

Ancaster  v.  Mayer 

397 

456 

Savage 

299,  539 

Ancots  V.  Catherick 

106 

•                  Smith 

3,  11,  23 

Anders  v.  Anders 

600 

Addis  V.  Campbell 

573 

Meredith 

398 

Addison  v.  Coon 

435,  463 

Anderson,  &c. 

58 

Agar  V.  Young 

218 

Anderson  v.  Bacon 

35 

Aiken  v.  Appleby 

201 

Critcher 

194 

285 

.  •  Smith 

197,  228 

Dawson 

623 

Aikin  v.  Morris 

468 

Hughes 

604 

Albany  v.  Bay 

91,  405 

Lemon 

349 

354 

Alden  v.  Gilmore 

49 

Nefif 

414 

Alderman  v.  Dunn 

494,  498 

Nesmith 

199 

565 

Treate 

194 

Prindle 

284 

Aldrich  v.  Parsons 

8 

Andrew  v.  Southouse 

628 

Sharp 

47  G 

Andrews  v.  Andrews 

175 

Aldridge  v.  Barbison 

90 

Scotton 

347 

Alexander  v.  Bonnin 

195,  225 

Semter 

386 

M 'Murray 

302,  336 

Sparhawk 

342 

344 

Alford  V.  Vickering 

28,  312 

Tompkins 

421 

Alger  V.  Fay 

618 

Washburn 

502 

Allaire  v.  Whitney 

178 

Angell  V.  Dawson 

346 

AUard  v.  Lane 

439,  446 

Ankeny  v.  Pierce 

216 

Allen  V.  Allen 

124 

Ann  Bedingfield's  case 

119 

Bryant 

353 

Ann  Mayowe's  case 

388 

Clark 

419,  485 

Annable  v.  Patch 

628 

,  591 

XXIV 


TABLE  OF  CASES  CITED  IN  YOL.  ONE. 


Anne,  &c. 

V3 

Austin  V.  Sawyer 

12 

Ansliutz  V.  M'Clelland 

503 

Thomas 

54 

Ansten  v.  Taylor 

648,  649 

Aveling  v.  Barnum 

218 

Anthony  v.  Smith 

494 

Knipe 

571 

Appleton  V.  Boyd 

589 

Avelyn  v.  Ward 

524 

Arolideacon  v.  Bowes 

479 

Averill  v.  Loucks 

578,  579 

Archer's  case              535,  543,  544 

549,  652 

Avery  v.  Baum 

48 

Arden  v.  Pullen 

210,  211 

Cheslyn 

22,  23 

Ards  V.  Wathen 

257 

Guthrie 

421 

Areson  v.  Areson 

627 

Smith 

283 

Argyle  v.  D  win  el 

608,  609 

Ayer  v.  Ayer 

304 

Arniistead  v.  Dangerfield 

537 

Spring 

113,  144 

Arms  V.  Ashley 

308,  309 

Aylor  V.  Chep 

576 

Armstrong  v.  Baker 

134 

Aymar  v.  Bill 

438 

Campbell 

308 

Ayres  v.  Draper 

283 

Clark 

245 

Husted 

437,  442 

Park                      134 

136,  351 

Shannon 

476 

Peirse 

333 

Willis 

131 

"Wolsey 

297 

Zane 

338 

Arnold  v.  Arnold 

524 

B 

Foot 

427 

Gilbert                         30 

359,  362 

Babb  V.  Perley 

81,  86 

Hodges 

204 

Babcock  v.  Albee 

284 

Buggies 

30 

Smith 

84 

.U.  S. 

201 

Baber  v.  Harris 

188 

Arnot  V.  'Post 

183,  392 

Back  V.  Andrews 

326 

Asay  V.  Hoover 

413,  430 

Backhouse  v.  Wells 

652 

Ashhurst  v.  Given 

3:S2 

Bacon  v.  Bowdoin 

195,  410 

Ashley  v.  Brightman 

606 

Brown 

214,  376 

Ashman  v.  Williams 

7 

Huntington 

352,  397,  402 

Ashtou  V.  Ashton 

655 

Leonard 

461 

Dalton 

490 

M'Intire 

424 

Milne 

424 

Smith 

271 

Ash  ton's  case 

166 

Taylor 

205 

Aspinwall  v.  Leigh 

275 

Baddeley  v.  Leppingwell 

632 

Aston  V.  Aston 

428 

Badger  v.  Bruce 

14t 

Hare 

514 

Badham  v.  Cox 

498 

Astor  V.  L'Amoreux 

105 

Badlara  v.  Tucker 

422 

Miller 

405,  412 

Baggett  V.  Meux 

55 

Astreen  v.  Flanagan 

•  67,  324 

Bagley  v.  Bailey 

464 

Atherstone  v.  Bostock 

281 

Bagot  V.  Oughton 

456 

Atherton  v.  Pye 

668,  669 

Bagshaw  v.  Spencer 

301,  305,  648 

Atkins  V.  Chilson 

241 

Bailey  v.  Boyce 

134 

Kron 

67 

Campbell 

244 

Sawyer 

416,  460 

Carleton 

43 

Teomans 

154 

Carte  n 

.424 

Atkinson  v.  Baker 

66,  72 

Delaplaine 

184 

Hall 

479 

Ekins 

342 

Maling 

422 

Lincoln 

468 

Attaquin  v.  Fish 

273 

Rust     . 

607 

AttersoU  v.  Rittenhouae 

84 

Sisson 

604 

Stevens 

566 

Willard 

445,  485 

Attorney-General  v.  Bower 

430 

Bailis  V.  Gale 

628 

Fishmonger's, 

&C.      336 

Bain  v.  Clark 

15 

Governors,  <ic 

357 

Baines  v.  McGhee 

491 

Holland 

345 

Baird  v.  Baird 

366 

Scott 

302,  330 

Remen 

355 

Sutton 

638 

Baker  v.  Adams 

284 

Wiustanley 

473 

Baker 

146,  159 

Atwood  V.  Atwood                    102, 

105,  144 

Boston 

223 

Vincent 

492 

Bridge 

621 

Austin  V.  Austin 

406 

Gittings 

283 

Bradley 

399 

Holtpzofifell 

226 

Cambridgeport 

378,  6J7 

Johnson 

3 

Croome 

66 

Lorillard 

521 

Halsey 

494 

Root 

281 

Raymond 

383,  384 

Thrashed 

402 

TABLE  OF  CASES  CITI'.D  IN  VOL.  ONE. 


XXV 


Baker  v.  Tucker 

644 

Barnes  v.  Raester 

459 

Wall 

634 

Wriglit 

603 

Wliiting 

328,  336 

Barnett  v.  Barnett 

356 

Wind 

376 

Goings 

327 

Balcli  V.  Onion 

424 

Weston    ^  _ 

419 

Baldricli  v.  Wliito 

667 

Barney  v.  Frownar 

113,  114 

Baldwin  v.  Jenkins 

392,  394 

Keith 

194 

Norton 

448 

Barnitz  v.  Casey 

557,  559 

Whiting 

595,  596 

Smith 

499 

Balfour  v.  Welland 

343 

Barr  v.  Galloway 

41,  77 

Ball  V.  Carew 

352,  353 

Gratz 

43 

Cliurcb 

129 

Barrett  v.  Joy 

308,  346,  347 

Coleman 

644,  647,  648 

Barron  v.  Barron 

92 

Harris 

343 

Martin 

424 

Ballantine  v.  Greer 

229 

Barrow  v.  Nave 

602 

Ballard  v.  Ballard 

528 

Barry  v.  Alsbury 

366 

Bowers 

418 

Barry 

34t 

Carter 

430 

Ed  go  worth 

62t 

Ballentine  v.  Joyner 

263 

Nugent 

195 

M 'Do  well 

244 

Bartie  v.  Falkland 

374 

Ballinger  v.  Edwards 

466 

Bartlett  v.  Harlow 

594,  595 

Ballitt  V.  Musgrave 

262 

Hodgson 

345 

Balls  V.  Westwood 

216 

Jaueway 

156 

Baltimore  v.  M'Kim 

6,  38 

Barton's  case 

183,  547 

Bancroft  v.  A  ndrews 

152 

Barwick  v.  Foster 

237 

White 

107 

Baskin  v  Seechrist 

219 

Banham  v.  Newcomb 

424 

Baskins  v.  Giles 

357 

Bank,  &c.  v.  Beverly- 

336 

Bass  V.  Scott 

304,  337 

Carroll 

417 

Basset  v.  Basset 

538 

Crary 

10,  13 

Bassett  v.  Bassett 

393 

Curtiss 

501 

■     Mason 

437,  486 

Dunseth 

145 

Bates  V.  Norcross 

42 

Finch,  &c. 

421 

Shraeder 

270 

Fox 

488 

Sparrel 

4 

Mitchell 

437,  442 

^    Thornberry 

615 

Mott 

408 

Webb 

525 

Peters 

435 

Batchelder  v.  Middleton 

424,  478 

Rose 

426 

Robinson 

488 

Smyera 

43,47 

Battle  V.  Griffin 

485 

Sprigg 

397 

Baush  V.  Ware 

38 

Tarleton 

431,  445 

Baxter  v.  Brown 

195 

Torrey 

348,  351 

Lansing 

382 

Whyte 

397,  413 

Baykes  v.  Baykes 

338 

Wise 

11,  239 

Bayley  v.  Greenleaf 

498 

Banks  v.  Rebbeck 

198 

Howan 

388 

Sutton 

330,  338 

Morris 

644 

Walker 

468 

Baylies  v.  Bussey 

450 

Banuso  v.  Madan 

366 

Taylor 

666 

Barber  v.  Caig 

435 

Willey 

396 

Harris 

588 

Baylis  v.  Newton 

326 

Root 

85 

Staate 

356 

Barclay,  &c. 

507 

Bayly  v.  Lawrence 

254 

Bard  v.  Fort 

467,  478 

Rees 

345 

Barker  v.  Barker 

81 

Bayne  v.  Gaylord 

509 

Bates 

18 

Beach  v.  Barons 

236 

Giles 

666 

Grain 

212 

Barkeydt  v.  Barkeydt 

626 

Gray 

245 

Salmon 

44 

Beadley  v.  Holdsworth 

29 

Barlow  v.  Barlow 

62 

Bcale  V.  Sanders 

213 

Wainwright 

280 

Beall  V.  Barclay 

438 

Barnard  v.  P]aton 

468 

Bean  v.  Mayo 

407 

Edwards 

153 

Bear  v.  Bitzer 

16 

Large 

552 

Snyder 

104,  146 

Pope 

470,  605 

Beard  v.  Nuthall 

168 

Barnardiston  v.  Coster 

521 

Beardslee  v.  Beardslee 

388,  630 

Barnardistone  v.  Fane 

382 

Bearlsley  v.  Knight 

30 

Barnes  v.  Baxter 

437 

Beare  v.  Prior 

424,  426 

Camark 

440 

Bears  v.  Ambler 

211 

XXVI 


TABLE  OF  CASES  CITED  IN  VOL.  ONE. 


Beatton,  Ac. 

416 

Bigelow  V.  Collamore 

254 

Beaty  v.  Gibbons 

15,  25 

Finch 

281 

Beavers  v.  Smith                  113 

145,  147,  155 

Jones 

601 

Beck  V.  McGillis 

430 

Willson 

201 

417 

Ulirick 

342 

Biggin  V.  Bridge 

23t 

Beck's  case 

621 

Biggot  V.  Smith 

515 

Becket  v.  Snow 

437 

Billion  V.  Stone 

323 

Beck  with  v.  Bent 

230 

Binney  v.  Chapman 

216 

,217 

Boyce 

20,  22,  24 

Birch  V.  Wright 

190 

410 

Jjamb 

88 

Bird  V.  Gardner 

411 

Beokwith's  case 

298 

Birsted  v.  Wilkins 

67 

Beddingfield's  case 

60,  119,  160 

Bisland  v.  Hewett 

493 

Bedford  v.  Thomas 

283,  284 

Bisbee  v.  Kail 

179, 

187 

Beebe  v.  Coleman 

191 

Bishop  V.  Bishop 

337 

Beecher  v.  Parmelee 

287 

Doty 

200 

Beeman  v.  Green 

184 

Selleck 

659 

Beer  v.  Beer 

257 

Bishop,  &c. 

176 

Beers  v.  St.  John 

23 

Bishop  of  Bath's  case 

201 

Beeson  v.  M'Nabb 

156 

Black  V.  Black 

309 

Beirne  v.  Campbell 

493 

Blackburn  v.  Baker 

43 

Belch  V.  Harney 

424 

Gregson 

494 

Belcher  v.  Mcintosh 

211,  212 

Pennington 

499 

Belding  v.  Manly 

431 

Warwick 

466 

Belfour  V.  Davis 

216,  218 

Blacklow  V.  Lawes 

303 

Weston 

254 

Blackraan  v.  Blackman 

163 

Belingall  v.  Gear 

476 

Blackwell  v.  Overby 

396 

BeU  V.  Fry 

53 

Blain  V.  Harrison         127, 128, 

139,  147 

148 

Hartley 

43 

Blair  v.  Bass 

311,  314 

332 

Morse 

432 

Pathkiller 

38 

Neely 

101 

Rankins 

188 

Scannon 

54,  627,  630 

Blake  v.  Blake 

72 

Twilight 

69,  107 

Crowninshield 

201 

Wilson 

135 

Foster 

328 

Bellasis  v.  Compton 

313 

Freeman 

84 

Belmont  v.  Smith 

34 

Miliken 

599 

Bells  V.  Westwood 

216 

Tucker 

222 

Benbow  v.  Townsend 

314,  396 

Blakeinore  v.  Byrnside 

397 

Bend  v.  Susquehannah,  &c. 

397 

Blakesley  v.  Whieldon 

9 

Benedict  v.  Morse 

282,  590 

Blanchard  v.  Brooks           515, 

521,  522 

606 

Bennet  v.  Box 

331 

Kimball 

477 

Holt 

402 

Blaney  v.  Bearce                405, 

406,  409 

412 

Womack 

208 

Blanford  v.  Blanford 

576 

Bennett  v.  Butterworth 

424 

B Ian  tin  v.  Whitaker 

216 

Cooper 

424 

Blaxton  v.  Stone 

637 

Morris 

652 

Bleecker  v.  Smith 

208 

Bennock  v.  Whipple 

394 

Bloight  V.  Manufacturers,  &c. 

30 

Benson  v.  Benson 

306 

Blewitt  V.  Millet 

322 

Bentley  v.  Burdon 

558 

Bligh  V.  Brent 

29,  30 

Long 

518 

Bliss  V.  Smith 

296 

Phelps 

397 

Biodwell  V.  Edwards 

530 

Beresford's  case 

620 

Blood  V.  Blood     • 

106 

119 

Berger  v.  Hiester 

448 

Wood 

41 

Bernal  v.  Bernal 

88 

Bloodgood  V.  Zeily 

398 

Berrien  v.  Conover 

153 

Blosse  V.  Clanmorris 

543 

Berrington  v.  Parkhurst 

520 

Blossom  V.  Brightman 

593 

Berry  v.  Mutual,  &c. 

492 

Blougliton  V.  Langley 

301 

Williamson 

301,  641,  648 

Blount  V.  Hipkins 

459 

Bettes  V.  Dana 

470 

Winter 

169 

Betts  V.  Lee 

6 

Blow  V.  Maynard 

103, 

122 

Betty  V.  Moore 

59 

Blowder  v.  Baugh 

47 

Beverley  v.  Beverley 

516 

Blower  v.  Moiret 

132 

Beverly  v.  Burke 

48 

Blunden  v.  Baugh 

282 

Bewick  V.  Whitfield 

274 

Blyer  v.  Monholland 

437 

Bicket  V.  James 

503 

Boarman  v.  Catlett 

416, 

460 

Bickford  v.  Daniels 

396 

Groves 

92 

Bickley  v.  Bickley 

159 

Bod  well  V.  Webster 

394 

Biddeford  v.  Onslow 

565 

Bogardus  v.  Trinity,  &c. 

48, 

387 

Biddle  v.  Starr 

612 

TABLE  OP  CASES  CITED  IN  VOL.  ONE, 


XXVU 


Bogcr  V.  Smith 
Bogera  v.  Newbanks 
Bogue  V.  Rutledge 
Boliannon  v.  Ithresliley 
Bollos  V.  Chauncoy 
Bolton  V.  Ballard 

Williams 
Bombaugh  v.  Bombaugh 
Bond  V.  Hopkins 
Kent 

Susquehanna,  Ac. 
Bonham  v.  Badgeley 
Galloway 
Newcomb 
Bonker  v.  Bull 
Bonner  v.  Proprietors,  &c. 
Booker  V.  Gregory 
Bool  V.  Mix 
Boon  V.  Barnes 
Boos  V.  Ewing 
Booth  V.  Adams 
Barnum 
Booth  by  v.  Vernon 
Borah  v.  Archers 
Boraston's  case  514, 

Bordman  v.  Osborn 
Borst  V.  Boyd 

GrifBn 
Boson  V.  Williams 
Boston  V.  Binney 
Boston,  &c.  V.  Bulfinch 
King 
Sparhawk 
Boteler  v.  Abington 
Botliam  V.  Mclntier 
Botsford  V.  Burr 
Bottomley  v.  Fairfax 
Boughton  V.  Langley 
Bould  V.  Kinston 
Bourne  v.  Littlefield 

Simpson 
Bournonville  v.  Goodall 
Bovey  v.  Smith 
Bowers  v.  Bowers 
Edwards 
Porter 
Seeger 
Bowie  V.  Berry 
Bowkcr  V.  Ball 
Bowles  V.  Poore 
Bowie's  case 
Bowling  V.  Dobin 
Bowman  v.  Wathen 
Bowsa  V.  Wright 
Bowser  V.  Bowser 
Colby 
Scott 
Boyd  V.  Graves 
M 'Combs 
M'Lean 
Shaw 
Sloan  0 
Stone 
Talbert 
Boyer  v.  Smith 
Boyers  v.  Elliott 
Boylston  v.  Carver 
Boynton  v.  Hubbard 


220 

Bracebridge's  case 

642 

159,  160 

Bracken  v.  Miller 

341 

106 

Bracket  v.  Leighton 

93 

336 

Bradford  v.  Belfield 

629 

444 

Foley 

623 

415 

Perkiaa-  - 

630 

493 

Bradish  v.  Gibbs 

92 

591 

Bradley  v.  Boynton 

602 

424 

Fuller 

442,  447 

494 

Westcott 

623 

397 

Bradshaw  v.  Ellis 

12 

47,  155 

Bradstreet  v.  Huntington 

601 

443 

Schuyler 

338 

400 

Brady  v.  McCosker 

605 

437 

Weeks 

186 

605 

Brailsford  v.  Heyward 

328 

428 

Brainard  v.  Bushnell 

201 

88 

Brainer  v.  Stewart 

473 

493 

Braithwaite  v.  Skinner 

412 

494 

Branch  v.  Doane 

224 

422 

Branson  v.  Yancy 

139,  142 

598 

Brant  v.  Gelston 

659 

81 

Brashear  v.  Jackson 

196 

615 

Williams 

83 

624,  559,  630,  670 

Bratton 

496 

188,  250 

Bratton  v.  Clawson 

27,  28 

413,  424,  478 

Mitchell 

84,  149 

151 

Bracton  v.  Lee 

121 

480 

Bray  v.  Tracy 

270,  276 

217 

Braybrooke  v.  Inskip 

410 

51 

Braithwaite -y.  Hitchcock 

281 

268,  428,  443 

Brewer  v.  Connell 

•122 

50 

Hardy 

648 

302 

Harris 

176 

480 

Knapp 

193 

312 

Staples 

437,  441 

330 

Van  Arsdale 

110,  116 

302 

Brekenridge  v.  Ormsby 

472 

547 

Bree  v.  Holbeck 

438 

428,  484 

Breeding  v.  Taylor 

602 

121 

Brent's  case                        294, 

531,  540,  546 

509 

Brewster  v.  Striker 

335 

340 

Brice  v.  Smith 

635 

.  152 

Brick,  &c. 

4 

398 

Brick  V.  Getzinger 

408 

659 

Brickheadv.  Archbishop,  &c. 

119 

438 

Bridge  v.  Hubbard 

467 

114,  115 

Bridge  &c.  v.  State 

193 

419 

Briggs  V.  Earle 

272,  276 

247 

French 

468,  470 

65,  94,  520,  544 

Richmond 

488 

613,  561 

Sholes 

467 

1 

Thompson 

228,  252 

604 

Brigham  u.Eveleth 

596 

190 

Bright  V.  Wilson 

268 

385 

Briles  v.  Pace 

286 

240 

Brimmer  v.  Sohier 

665 

600 

Brindernagle  v.  German,  &c. 

478 

236 

Bringloe  v.  Goodson 

218 

314 

Brinsmaid  v.  Mayo 

597 

479 

Brisbane  v.  Stoughton 

403 

245 

Briscoe  v.  Bonnaugh 

493 

39G 

Campbell 

493 

243 

Wicklifife 

2 

216 

Bristed  v.  Wilkins 

67 

678,  579 

Bristol  V.  Morgan 

432 

430 

i^rocklehurst  v.  Jessop 

424 

571 

Bromfield  v.  Crowder 

62d 

xxvni 


TABLE  OF  CASES  CITED  IN  VOL.  ONE. 


Bromley  v.  Hopewell 

229 

Buchanan  v.  Shannon 

4'79 

Brompton  v.  Alkis 

577 

Upshaw 

470 

Bronson  v.  Robinson 

416 

Buck  V.  Binninger 

288 

Brooks  V.  Avery 

466,  467 

Fisher 

221 

Briggs 

20 

Squiers 

51 

Dent 

31i;  326 

Winn 

340 

579 

Eowle 

317,  318 

Buckeridge  v.  Ingram 

110 

Harwood 

419 

Buckermaster 

385 

Towle 

46 

V.  Needham 

600 

Whitney 

625 

Buckingham  v.  Drury 

166 

Brothers  v.  Porter 

314,  339 

Buckland  v.  Butterfield 

20 

Brough  V.  Higgins 

67 

Buckley  V.  Buckley             20, 

21,  22,  26 

578 

Broughton  v.  Errington 

171 

Buckraan  v.  Buckman 

48 

Langley 

302,  647 

Bucksport  V.  Spoflbrd 

53,  54 

166 

Randall 

105 

Buck  worth  v.  Thurkell 

86 

Brown  v.  Adams 

94,  138 

Budeley  v.  Massey 

303 

Barkham 

399 

Buell  V.  Cook 

197 

Bartee 

328 

Buist  V.  Dawes 

512 

520 

Brown 

65,  308,  607 

Bulkley  v.  Dolbeare 

276 

Cram 

405 

Bull  V.  Birkbeck 

67 

Dewey 

396 

Church 

129 

Edson 

43 

Bullerd  v.  Bowers 

106 

Elton 

71 

Copps 

218 

Farrar 

125 

Goffe 

642 

Hodgdon 

134 

Hinkley 

465 

Jones 

321 

Buller  V.  Cheverton 

247 

King 

6,  47,  48,  280 

Bullock  V.  Dommit 

211 

Lapham 

415,  445 

Griffin 

121 

M'Cormick 

222 

Sneed 

238 

265 

Meredith 

138 

Bulwer  v,  Astley 

67 

Parkham 

4 

Bulwer 

14 

Porter 

54 

Bum  V.  Sim 

31 

Quilter 

255 

Bumpus  V.  Platner 

341 

468 

Ramsey 

665 

Bun  V.  Winthrop 

301 

Spand 

86 

Burbank  v.  Day 

146 

Sparel 

89 

Burchard  v.  Hubbard 

222 

Stead 

446 

Burden  v.  Thayer 

188,  236 

238 

Stewart 

406,  408 

Burdet  v.  Hopegood 

537 

Storey 

409 

Burdett  v.  Clay 

421 

431 

Turner 

608 

Burgess  v.  Mawbey 

67 

Wenham 

38 

Sturgis 

478 

Wernwag 

473 

Wheate 

328 

413 

"Williams 

124 

Burgen  v.  Chevault 

302 

Wood 

607 

Burghart  v.  Turner 

661 

Worcester 

419,  460 

Burhans  v.  Van  Zandt 

47 

600 

Wright 

394,  397 

Burk  V.  Baxter 

22 

Browne  v.  Amyot 

239,  635 

Osborn 

141 

216 

Jerves 

635 

Sherman 

416 

Potter, 

107 

Burke  v.  Hale 

216 

Smith 

508 

Wilder 

537 

Brownell  v.  Brownell 

609 

Burkes  v.  Chrisman 

497 

Browner  v.  Franklin 

89 

Barley's  case 

647 

Browning  v.  Dalesme 

4 

Burling,  &c. 

510 

Clymer 

478 

Burliiigham  v.  Belding 

631 

Haskell 

202,  245 

Burnett  v.  Pratt 

474 

Brownswords  v.  Edwards 

527 

Thompson 

194 

Bruce  v.  Halbert 

24 

Burnside  v.  Merrick 

578 

Wood 

86,  89 

Weightman 

12 

Bruerton  v.  Rainsford 

179 

Burrell  v.  Davis 

210 

Brumfield  v.  Brown 

283 

Burridge  v.  Bradyl 

132 

Brundigo  v.  Poor 

91 

Burril  v.  Page 

116 

Bryan  v.  Buckholdor 

229 

Burhans  v.  Burhans 

604 

Fisher 

252 

Burton  v.  Baxter 

431 

Tucker 

41 

Burton 

629 

Brydges  v.  Brydges 

333 

Slattery 

399 

Buchan  v.  Sumner 

578 

Bush  V.  Allen 

304 

Buchanan  v.  Buchanan 

168,  169 

Bradley 

277 

Deshon 

109, 110 

Bush  V.  Livingston 

466, 

467 

TABLE  OP  CASES  CITKD  IN  VOL.  ONE. 


XXIX 


Bush's  case 

129 

Capis  V.  Middletoa 

437 

Bussey  v.  Paige 

408 

(jHrt-y  V.  Callan 

313 

Bustard's  case 

160 

Cargill  V.  Sewall 

54 

Buswell  V.  Davis 

443,  470 

Carpenter  v.  Carpenter 

67 

Butler  V.  Buekingliara 

90 

GritKn     ,.  _ 

200 

Butler 

454,  534 

Providence 

434 

Elliott 

442 

Schermerhorn 

527 

Haskell 

672 

Carr  v.  Carr 

111 

Hicks 

342 

Porter 

647,  652 

Little 

627 

Carrington  v.  Roots 

12,  222 

Wonnings 

259 

Carroll  v.  Carroll 

622 

Page 

20,  29 

Craino 

508 

Phelps 

601 

Carruthors  v.  Carruthers 

164 

Butt  V.  Maddox 

484 

Wilson 

122,  149 

Butterfield  v.  Baker 

227 

Carson  v.  White 

611 

Butts  V.  Edwards 

241 

Carter  v.  Barnardiston 

176,  554 

Buxton  V.  Uxbridge 

63,  635 

Clark 

117 

Byrne  v.  Beeson 

216,  220,  221 

Cummins 

255 

Hammet 

189 

Kerr 

014 

0 

Parker 

97,  107,  114 

Rocket 

424 

Welch 

496 

Cadbury  v.  Duval 

342,  344,  353 

Williams 

77,  78 

Cage  V.  Acton 

182 

Cartledge  v.  West 

245 

Caillanet  v.  Bernard 

93 

Carver  v.  Earl 

48 

Cairns  v.  Chabert 

67 

Jackson 

529 

Caldecott  v.  Brown 

67 

Miller 

268 

Moon 

212 

Carnardine  v.  Wieshlade 

478 

Skilton 

627 

Cary  v.  Prentice 

444 

Calhoun  v.  Calhoun 

91 

Casborne  v.  Inglis 

414 

Cook 

629 

Scarfe 

414 

Curtis 

11 

Case  V.  Davis 

230 

Lester 

223 

Casey  v.  Inloes 

51 

Mahon 

509 

McDaniel 

332 

Calkins  v.  Calkins 

424 

Cass  V.  Martin 

417 

Mutisell 

419 

Thompson 

120 

Calverley  v.  Phelp 

478 

Cassidy  v.  Rhodes 

12,  17 

Calvert  v.  Godfrey 

338 

Cason  V.  Lawrence 

67 

Simpson 

286 

Casporus  v.  Jones 

143 

Cameron  v.  Irwin 

400,  403 

Casson  v.  White 

508 

Mason 

492 

Castle  V.  Dod 

299 

Camp  V.  Barker 

380 

Castleman  v.  Bell 

408,  409,  410 

Camp 

200,  220 

Caston  V.  Caston 

134,  153 

Coxe 

416 

Clarke 

331 

Homesley 

602 

Caswell  V.  Districh 

200 

Pulver 

262 

Ward 

479 

Campbell 

112,  257 

Cater  v.  Longworth 

471 

Campbell  v.  Arnold 

565 

Cathcart's,  &c. 

416 

Baldwin 

492,  495 

Cator  V.  Charlton 

419 

Campbell 

46 

Caufman  v.  Sayre 

398,  423,  483 

Drake 

316 

Caulfield  v.  Maguire 

67 

Knights 

445 

Cavendish  v.  Worsley 

60 

Love 

304 

Cavis  V.  M 'Clary 

411 

Macomb 

408 

Cazenove  v.  Cutler 

427,  428,  486 

Pennsylvania 

349 

Cecil  u  Dorsey 

613 

Procter 

283 

Chadock  v.  Cowley 

635,  667 

Stetson, 

185 

Chaffee  v.  Dodge 

620 

Thomas 

43 

Ciialfiu  V.  Malone 

48 

Walker 

349,  352 

Chalker  v.  Chalker 

207,  368,  384 

"Wallace 

42 

Challenger  v.  Shepard 

625 

Washington 

396 

Chalmers  v.  Stovil 

131,  134 

Canal,  &c.  v.  Railroad,  &c. 

384 

Chamberlain  v.  Thompson 

405,  420 

Can  by  v.  Porter 

1,  185 

Chamberliu  v.  Brown 

285 

Canedy  v.  Haskins 

644 

Shaw 

200 

Canon's  case 

620 

Chambi  rlyne  v.  Drummer 

273 

Caiioy  V.  Troutman 

339 

Chambers  v.  Chambers 

646 

Capel  V.  Butlor 

437 

Goldsmith 

398,  438 

XXJL 


TABLE  OP  CASES  CITED  IN  VOL.  ONE. 


Chambers  v.  ETiae 

393,  402 

Church  V.  Church 

156 

Mauldin 

417 

Church  V.  Davis 

511 

Tarnall 

509 

Wyat 

634 

Champlia  v.  Foster 

478 

Churchill  v.  Loring 

477 

Williams 

437 

Grundy 

687 

Chandler  v.  Edson 

6 

Marks 

155 

Spear 

43 

Monroe 

89 

Thurston 

279,  282 

City,  &c.  V.  Dedham 

3 

"Walker 

50 

Morehead 

210 

Chandos  v.  Talbot 

262 

Rice 

210 

Chaney  v.  Tipton 

613 

White 

236 

Chapin  v.  Hill 

174 

Clabaugh  v.  Ryerly 

490 

Marvin 

513,  519 

Clache's  case 

666 

Chaplin  v.  Chaplin 

248,  249,  330 

Claflin  V.  Carpenter 

11 

Givens 

340,  355 

Clagett  V.  Salmon 

422 

Chapman's  case 

637 

Worthington 

648 

Chapman  v.  Blisset 

•    802 

Claiborne  v.  Henderson 

331 

Bluck 

194 

Clapp  V.  Bromagham 

601 

Chapman 

491 

Draper 

10 

Gray 

179 

Houghton 

78 

Mull 

413 

Paine 

28t 

Smith 

426 

Stoughton 

368,  527,  560 

Tanner 

498 

Titus 

392 

Towner 

196 

Clapper  v.  Livergood 

80 

Turner 

392 

Titus 

392 

Chappel  V.  Brewster 

62 

Claridge  v.  M'Kenzie 

219 

Charles  v.  Andrews 

165 

Clark  V.  Abbott 

409 

Dunbar 

426 

Austin 

465 

Charnley  v.  Hansbury 

232 

Beach 

405 

Charleston  v.  Ackworth 

3 

Bull 

43 

Chase  v.  Lockerman 

345,  430 

Cumminga 

73,  258,  262 

Palmer 

481 

Plint 

438 

Chatham  v.  Williamson 

7 

Hobbs 

396 

Cheeseman  v.  Thorn 

611 

Holdford 

19 

Cheever  v.  Pearson 

54,  225,  278,  279 

Lucy 

375 

Chelsea,  &e.  v.  Bowley 

1 

Munroe 

106 

Chelsey  v.  Thompson 

599 

Robbins 

427 

Cherokee,  &c.  v.  Georgia 

38 

Smith 

38,  427 

Cherry  v.  Clements 

92 

Thomson 

204 

Cheslyn  v,  Dalbee 

433 

Williams 

38 

Chesroundv.  Cunningham 

601 

Clarke  v.  Cummings 

388 

Chester  v.  Wheelright 

442 

Sibley 

413 

Chesterfield 

571 

Stanley 

435 

Chesterfield  v.  Bolton 

265 

Windham 

92 

Chew  V.  Commr's.,  &c. 

77 

Clason  V.  Rankin 

43 

Chickering  v.  Hatch 

397 

Clarendon  v.  Barham 

458 

Chichester  v.  Oxendon 

627 

Claxton  V.  Claxton 

275 

Child  V.  Bally 

201 

Clay  V.  Hart 

31,  135 

Clark 

188,  189 

Sharp 

403 

Childo  V.  Willis  " 

356 

White 

40,  41 

Childers  v.  Smith 

236 

Willis 

403 

Childs  V.  Clark 

246 

Clearwater  v.  Rose 

431 

Russell 

524 

Clench  v.  Witherby 

398 

Smith 

111,  158,  263,  273 

Clemencew   Steere, 

262,  264,  265,  266 

Chilton  V.  Niblett 

219 

Cleppes  V.  Livergood 

612 

Chittenden  v.  Barney 

459 

Clere  v.  Pacock 

387 

Cholmley's  case 

530 

Clare's  case 

298 

Cholmondeley 

549 

Clerk  V.  Clerk 

660 

Cholmondeley  v.  Clinton 

405,426,  472, 

Day 

634 

Chorlton  v.  Taylor 

627 

Cleves  V.  Willoughby 

210,  245,  252 

Chretien  v.  Doney 

202,  284 

CJineu.  Black 

255 

Christie  v.  Herrick 

478 

Clinton  v  McKenzie 

224 

Christopher  v.  Blackford 

499 

Close  V.  Hunt 

508 

Christophers  v.  Sparke 

408,  423 

Clouch  V.  Puryear 

263 

Chudleigh's  case        235, 

296,  542,  543,  544, 

Clough  V.  Elliott 

415 

545, 

549 

Clower  V.  Rawling 

492,  494 

Church  V.  Brown 

208 

Clun's  case 

237 

BuU 

129,  130 

Clymer  v.  Dawkins 

eoo 

TABLE  OP  CASES  CITED  IN  VOL.  ONE. 


XXXI 


Coale  V.  Barnoy 

613 

Cook  V.  Fountain 

Coan  V.  Parmentier 

631 

Hammond 

Coates  V.  Choover               110,  150 

154 

489 

Gerrard 

Wood  worth                312 

397, 

424, 

Horle 

413 

47G 

Hutchinsou      .  _ 

Cobb  V.  Arnold 

21G 

217 

Lonloy 

Thompson 

333 

Morris 

Coburn  v.  Hollis 

50 

Neilson 

Cochrane  v.  Libby 

100, 

107 

Nicholas 

Cockran  v.  O'Horn 

329 

Stearns 

Codman  v.  Coffin 

622 

625 

Soltan 

Jenkins 

216 

244 

Coombs  V.  Jordan 

Tinkbam 

606 

Coon  V.  Birckett 

Coffin  V.  Lunt 

280 

281 

Coons  V.  Nail 

Morrill 

86 

Coonrod  v.  Coonrod 

Cogan  V.  Cogan 

390, 

532 

Cooper  V.  Adams 

Cogswell  V.  Tibbets 

100 

Cooper 

Cohen  v.  Dupont 

253 

Davies 

Coit  j;.  Fitch 

487 

Henderson 

Coke  V.  Pearsall 

409 

Jones 

Col  burn  v.  Mason 

600 

601 

Martin 

Colby?;.  Poor 

480 

Smith 

Colcord  V.  French 

511 

Whitney  102,  330, 

Swan 

90 

415 

Cole  V.  Hall 

609 

Copis  V.  Middleton 

Levingston 

663 

668 

Coppage  V.  Alexander 

Patterson 

238 

Coppin  V.  Coppin 

Rawlinson 

628 

Coppring  v,  Cooke 

Scott 

495 

Copperthwait  v.  Dummer 

Sury 

236 

Corbet's  case 

Coles  V.  Marquand 

185 

Corbet  v.  Stone 

Trecothick 

353 

Corbin  v.  Healey 

Coleman  V.  Freeman 

500, 

507 

Corder  v.  Morgan 

McKinney 

344 

Cornell  v.  Lamb                    39 

Packard 

406 

-Sikes 

Collett  V.  Mundeu 

419 

Vanartsdalen 

Collins'  case 

630 

Cornish  v.  Strutton 

Collins  V.  Barrow 

212 

Cornwall  v.  Hoyt 

Canty 

284 

Corm  V.  Huffey 

Carlisle 

426, 

622 

Corwin  v.  Corwin 

Harding 

257 

Coster  V.  Clark 

Shirley 

478 

Lorillacd 

Terry 

415, 

489 

Coster's  &c. 

Colt  V.  Colt 

330 

(Jotheal  V.  Blydenburg 

Colquit  V.  Thomas 

492 

Cother  v.  Essex 

Colson  V.  Colson 

641 

Merrick 

Colthirst  V.  Bejushin 

618 

Coteman  v.  Freeman 

Colton  V  Smith 

606, 

607 

Cotter  V.  Richardson 

Columbia,  &c.  v.  Lawrence 

434 

Cotter  el  v.  Hampson 

Colvin  V.  Baker 

281 

Long 

Colwell  V.  Hamilton 

476 

Cotterell  v.  Purchase 

"Woods 

394 

Cothington  v.  Fletcher 

Comber  V.  Hill 

667 

Cottle  V.  Sydmor 

Combs  V.  Young 

120 

Couch  V.  Couch 

Comfort  V.  Duncan 

15 

County  &c.  v.  Brown 

Comley  v.  Hendricks 

478 

Countz  V.  Geiger 

Comly  V.  Strader 

99 

100 

Courtney  v.  Taylor 

Commercial,  &c.  v.  Cunningham 

423 

Cousett  V.  Bell 

Commrs.  &c.  v.  Hart 

460 

Couster  v.  Dawson 

Commonwealth  v.  Stauffor 

376 

Coutant  V.  Servoss 

Commyns  v.  Latimer 

389 

Coventry  v.  Coventry 

Compton  V.  Oxonden 

445 

Covert  V.  Hertzogg 

Conant  v.  Little 

159 

Cowan  V.  Wheeler 

Conner  v.  Lewis 

312 

Cowie  V.  Goodwin 

Cook  V.  Arnhara 

424 

Cox  V.  Fenwick 

Bisbee 

65 

Grant 

Cook 

116, 

119 

Jagger 

Colyer 

423 

466 

McBurney 

297,  311 
3,  101,  569 
663 
249 
325 
216 
245 
280 
154 

222,  224 

424 

12,  22,  420 

208,  246 
147 

630,  634 

6,  282,  283 

333 

405,  408 

356 

667 

436 

216 

331,  392,  394, 

,  445,  449,  489 

431 

64,  65,  390 

494 

426 

473 

368,  622 
535 
626 
403 
,  230,  231,  244 
424 
210 
265 
200 
612 
48,  600 
30,  117 
361 
352 
466 
235 
234 
500 

181,213 
341 
392 

393,  399 

396 

43 

339,  357 
602 
88 
397 
277 
345 
403 
456 
119 
42 
253 

186,  495 

312 

138,  139,  140 

678 


XXXll 


TABLE  OF  CASES  CITED  IN  VOL.  ONE. 


Cox  V.  TTalker 

Wheeler 
Coxe  V.  Smith 
Coy  V.  Leach 
Cozens  v.  Stephenson 
Craddock  v.  RiddJesberger 
Craft  V.  Webster 

Wilcox 
Craig  V.  Craig 

Dale 

Leslie 

Tappin 

Taylor 

Watt 
Cram  v.  Dresser 
Craiich  v.  Fowle 
Crane  v.  Crane 

Deming 

March 

Marshall 

O'Connor 

Piiine 

Palmer 
Cranmer's  case 
Cravenor  v  Bowser 
Crawford  v.  Chapman 
Jarrett 
Morris 
Levereon 
Crawley's  case 
Cray  v.  Willis 
Crepson  v.  Stout 
Crest  V.  Jack 
Creswell  v.  Crane 
Crewe  v.  Dicken 
Crews  V.  Pendleton 
Crickmere  v.  Paterson 
Cripps  V  Wolcott 
Crisp  V.  Heath 
Crittenden  v.  Barney 

Woodrufif 
Croade  v.  Ingraham 
Crocker  v.  Fox 

Thompson 
Croft  v.  Powell 

Slee 
Crommelin  v.  Winter 
Crnoker  v.  Jewett 
Crosby  v.  Bradbury 
Chase 
Harlow 
Olis 

Wadsworth 
Zoop 
Croskey  v.  Coryell 
Cross  V.  Carson 

Coleman 

Marston 

Norton 
Crotts  V.  Collins 
Crouch  V.  Puryear 
Crow  V.  Tinsley 
Crowell  V.  Bebee 
Crowley  v.  Vittey 
Crujer  v.  Cruger 
Crurnpton  v.  Ballard 
Crusoe  v.  Bugbee 
Cudbery  v.  Duval 


205 
450 
336 
73 
179 
12 
528 
528 
358 
15 
30 
421 
601 
55,  65 
211,  214,  252 
209 
137 
422 
416,  432 
48 
179 
425 
493 
642 
220 
185 
229 
193,  215 
365 
295 
577 
22 
603 
286 
343,  354 
16,  408 
669 
526 
417 
419 
107 
146,  188 
152,  153 
440 
403 
623 
38 
443 
26 
443,  446 
409 
87 
11 
238,  257 
509 
379,  384,  386 
385,  394 
22 
314 
178 
111 
465 
43 
193 
92,  362 
300 
372 
342,  353 


Cud  worth  v.  HaU 

328 

Cuffee  V.  Milk 

634 

Cullen  V.  Hilty 

222 

Cullum  V.  Emanuel 

441 

486 

Erwin 

417 

433 

Cully  V.  Smith 

142 

Culp  V.  Fisher 

441 

Culpeper  v.  Aston 

344 

Cumberland  v.  Codrington 

452 

Cumberland's  case 

262 

Cumming  v.  Cummins 

437 

Daniel 

135 

Goelet 

285 

Moody 

329 

Cunningham  v.  Cunningham 

100 

Doe 

76 

Harper 

394 

Knight 

106 

Curl  V.  Lowell 

282 

Curling  v.  Shuttleworth 

403 

Cursham  v.  Newland 

643 

666 

•Jurrin  v.  Finn 

110 

Curteis  v.  Wolverston 

670 

Curtis  V.  Curtis 

96, 

147 

Groat 

6 

Price 

641 

Curtiss  V.  Hoyt 

7 

Tyler 

432,  434 

437 

Cusack  V.  Cusack 

645 

Cusbing  V.  Adams 

226 

505 

Ayer          437,  438, 

478,  481, 

486 

Mills 

194 

Smith 

481 

Cushney  v.  Henry 

360 

610 

Cuthbert  v.  Baker 

342 

Lempriere 

628 

Wolte 

92 

Cutler  V.  Haven 

431 

432 

Lincoln 

439 

Cuyler  v.  Bradt 

592 

Dabney  v.  Green 
Da  Costa  v,  Davis 
Dalamere  v.  Barnard 
Dale  V.  Dale 

Shirley 
Daley  v.  Desbouverie 
Dallas  V.  Floyd 
Dallman  v.  King 
Dalton  V.  Dalton 

Whittem 
Dame  v.  Weeks 
Danforth  v.  Dowry 
Roberts 
Smith 
Talbot 
Daniel  v.  Daniel 
Daniels  v.  Mowry 
Pond 

Richardson 
Dann  v.  Spurrier 
Darby  v.  Harris 
Darcus  v.  Crump 
D'Arcy  v.  Blake 


489 
380 
291 

64 
435 
375,376 
424 
366 
276 
19,  28 

98 
330 
425 
415 
524 

85 

481 

18,  279,  282 

186,  257 

202 

28 
350 
330 


TABJ 

-iB  OF  CASES  Ul 

LTED  IN  VOL.  ONE. 

xxxni 

Dare  v.  Hopkins 

275 

Delancy  v.  Gamier 

243 

Darley  v.  Lonnworthy 

3S0 

Delmonico  v.  Guillaume 

578 

Darling  v.  Rogers 

359 

Dolong  V.  Walker 

612 

Dart  V.  Dart 

635 

Demainbray  v.  Metcalf 

419 

Dartmoutli  v.  Woodward 

54 

Demarest  v.  Wyncoop 

92 

Dascomb  v.  Davis 

50 

Willard   '' 

236 

Dash  wood  v.  Blythway 

487 

Demi  v.  Bossier 

15 

Davenport  v.  Bartlett 

594 

Deming  v.  Comings    438,  474, 

480,  481, 

485, 

Farrar 

34,  116,  117 

488 

Oldis 

667 

Den  V.  Adams 

288 

333 

Tyrrill 

600 

Cartright 

202 

Davidson  v.  Heydon 

662 

Crawlbrd 

521 

Davie  v.  Beardsham 

312 

Demarest          90,  516 

519,  557 

G59 

Stevens 

637 

Dimou 

405 

432 

Davies  v.  Speed 

539 

McKnight 

351 

Thomas 

282 

Spinning 

433 

475 

Weld 

356,   551 

Denham  v.  Harris 

229 

Davinny  v.  Morris 

351 

Denk  v.  Hunter 

196 

Davis  V.  Anderson 

405 

Dcnn  V.  Shenton 

635 

Battine 

434,  477 

Dennis  v.  Dotuiis 

148 

Brockiebank     ' 

15,  200 

Deiinison  v.  Goehring 

323 

Burnell 

242 

Dennistoa  v.  Potts 

478 

Church 

600,  508 

Denny  v.  Allen 

527 

Egtoa 

14 

Hamilton 

461 

Evans 

424,  460 

Dent  V.  Hancock 

240 

Farr 

509 

Denton  v.  McKenzie 

317 

Gilliam 

263,  271 

Nanny 

415 

Hayden 

301,  620 

De  Peyster  v.  Clendening 

359 

Jones 

20 

Derby  v.  London 

487 

Logan 

107,  581 

Derush  v.  Brown 

116 

331 

Mason 

77 

Destrehan  v.  Scudder 

252 

403 

Maynard 

443,  444 

Dethoridge  v.  Woodruff 

86 

Mills 

437 

Dewall  V.  Covenhoven 

85 

Norris, 

612 

Dewey  v.  Bellows 

227 

Norton 

523 

Field 

470 

Simpson 

348,  352 

Dupuy 

185 

Smith 

665 

Morgan 

628 

Speed 

298,  554 

De  Wolf  t;.  Harris 

423 

Thomas 

282,  399,  402 

Dexter  v.  Arnold       420,  423, 

424,  425, 

426, 

Tingle 

93 

428,  481 

,  600 

Davison  v.  De  Freest 

468 

Manley 

209 

Dawes  v.  Haywood 

30 

Dey  V.  Dunham 

395 

Dawson  v.  Dawson 

69 

De  Young  v.  Buchanan 

213 

244 

Harrington 

504 

Dice  V.  Sliefler 

623 

Mitchell 

493 

Dick  V.  Balch 

434 

Day  V.  Merry 

277 

Maury 

431 

Perkins 

28,  490,  578 

Dickenson  v.  Church 

511 

Deadrick  v.  Armour 

624,  628 

Jackson 

406 

Dean  v.  Dean 

310 

Dickey  v-  McCullough 

338 

Dorrington 

66 

Dikeman  v.  Parish 

219 

Mitchell 

115,  116 

Diller  v.  Young 

31 

Richmond 

91 

Dillingham  v.  Jenkins 

179 

Dearborn  v.  Dearborn 

406 

Dillon  V.  Foraine 

291 

546 

Dearden  v.  Evans 

265 

Dilwortb  v.  Sitiderling 

347 

Deatly  v.  Murphy 

317 

Dingley  v.  Dingley 

527 

537 

Deaver  v.  Rice 

227,  230 

Dinsmore  v.  Biggert 

306 

De  Bevoise  v.  Sandford 

337 

Dixie  V.  Davies 

409 

Deboe  v.  Lowes 

61 

Dixon  V.  Dixon 

493 

Lowen 

557,  636 

Homer 

347 

Debow  V.  Colfax 

13,  14 

Picket 

514 

De  Butts  V.  Bacon 

466 

Saville 

404 

Degraw  v.  Cl.ison 

132 

Dobson  V.  Racey 

403 

De  hon  v.  Redferu 

68,  542 

Land 

427 

Deibles  v.  Berwick 

498 

Dod  V.  Dickinson 

650 

Dejarnatte  v.  Allen 

84,  85,  271 

V.  Dod 

646 

De  Kay  v.  Irving 

360 

Dodson  V.  Grew 

S46 

652 

Delahay  v.  Clements 

473,476,  504 

Hay 

329 

De  Lancey  v.  Ga  Nun 

216,  240 

Doe  V.  Abey 

585 

XXXIV 

TAUliiU  KJif  CAbiiS  I 

JITED  iJN    VOL.  UJNK 

Doe  V.  Allen 

3 

Doe  V.  Olbey 

Applia 

638 

Oliver 

Archer 

207 

Parmemen 

Ashburner 

194,  198 

Parratt 

Bannister 

634 

Passingham 

Barton 

216,  409 

Perryn 

Benjamin 

194 

Phillips 

Bernard 

102 

Pott 

Bolton 

302 

Prevoost 

Botts 

666 

Prigg 

Brower 

64 

Prosser 

Bucknell 

409 

Richards 

Burnett 

24 

Rivers 

Burville 

669 

Roberts 

Butcher 

206,  207 

'     Rock 

Carew 

369,  373 

Rogers 

Carter 

372 

Roper 

Cliallis 

216 

Rowland 

Charlton 

634,  641 

Sandham 

Clare 

197 

Scudamore 

Clayton 

625,  626 

Seaton 

Collins 

652 

Simpson 

Cooper 

184,  190,  639,  668 

Shipphard 

Crisp 

390 

Smarridge 

Davis 

335 

Smith 

Dixon 

584 

Spratt 

Dowell 

663 

Stagg 

Ed  wards 

65 

Steele 

Ellis 

305 

Tom 

Errington 

219 

Wainwright 

Fonnereau 

536,  642 

Walker 

Forwood 

183,  190 

Warburton 

Francis 

193 

"Watkins 

Fuller 

217 

Watson 

Fyldes 

630,  635 

Watt 

Gatacre 

543 

Watts 

Giles 

406 

Webb 

Goldwin 

283,  405 

Weller 

Green 

179,  666 

Wells 

Gregory 

48 

Wichelo 

Gwinnell 

95,  113 

Wood 

Hicks 

312 

Woodroffe 

Hossaek 

601 

Worsley 

Howland 

588,  623 

Dolan  V.  The  Mayor 

Hulse 

600 

Don  V.  Dimon 

Hutton 

80,  363,  569 

Donahoo  v.  Scott 

Jones 

264 

Donalds  v.  Plum 

Keen 

46 

Donelson  v.  Posey 

Kew 

194 

Donley  v.  Hays 

Knebell 

387 

Don  n  ell  v.  Matter 

Lawes 

181 

Donovan  v.  Donovan 

Lea 

526,  527 

Dorchester  v.  Coventry 

Lean 

625,  628 

Dorrill  v.  Stephens 

Lewis 

71 

Dorsey  v.  Clark 

Long 

266 

Gilbert 

Luxton 

71 

Doton  V.  Russell 

Maisey 

408 

Dott  V.  Cunnington 

Martin 

541,  619 

Dotyv.  Gorham 

Martyn 

557,  558 

Doub  V.  Barnes 

McCleary 

43 

Dougall  V.  Fryer 

McKay 

281 

Dougherty  v.  Lithicum 

McLoskey 

405,  443,  473 

M'Colgan 

Mizem 

281 

Sraithicum 

Moore 

529 

Doughty  V.  Browne 

Morgan 

537 

Douglas  V.  Congreve 

Needs 

176 

Dowling  V.  Ford 

Nicholla 

526 

Downe  v.  Morris 

Nowell 

527 

Downer  v.  Clement 

409 
558 
637 
580 
302 
521,  527,  530,  559 
382 
333 

528,  559 
526 
600 
631 
81,  636 
627 

279,  312 
79 

622,  625 
211 
208 
514 
220 
305 
523 
279 

629,  639 

526 

184 

71 

408 

662,  664 
181 
409 
202 
515 

382,  384 
203 
667 
206 
70 
635 
629 
56,  58 
663 

364,  389 
431 
509 
305 
347 

431,  433 
605 
628 
114 
214 

313,  316 
338 
439 
650 
8 
467 

370,  388 

460 

402,  427,  430 

464 

623 

634,  641 

424,  425 

413,  417 
436 


TABLE  OF  CASES  CITED  IN  VOL.  ONE. 


XXXV 


Downer  v.  Downer 

612 

East  Haven  v.  Hcmmingway 

363 

Doylo  V.  Sleeper 

324 

Eastman  v.  Foster 

6 

D'Oyloy  v.  Loveland 

339 

Eastwood  V.  Kirke 

170 

Drake  v.  Mundaj 

195 

Eaton  V.  George 

44C 

Pell 

524 

Green 

400,  492 

Drane  v.  Gregory 

90,  600 

Jaques 

412 

Drenkle's  Estate 

166 

Symonda 

418,  427,  448 

Driver  v.  Frank           524,  527,  529, 

530,  557 

Whitaker 

203 

Drury  v.  Cliapnaan 

244 

"Whiting 

404,  433 

Drury 

585 

Ebbs  V.  The  Commonwealth 

31 

Dubber  v.  Trollope 

648,  652 

Short 

386 

Dubois  V.  Kelly 

23,24 

Eberlo  v.  Fisher 

123 

Dudley  v.  Cadwell 

431 

Ebrand  v.  Dancer 

324 

Mallery 

660 

Kckford  v.  De  Kay 

394 

Duffield  V.  Whitlock 

208 

Ede  V.  Knowles 

490 

DufiFy  V.  Calvert               _   328,  341 

342,  357 

Edge  V.  Pemberton 

261 

Du  Hourmelin  v.  Sheldon 

317 

Stafford 

281 

Duke  &c.,  V.  Graves 

302,  308 

Edmondson  v.  Dyson 

622 

Harper 

216 

Edmonds  v.  Povey 

419 

Kinton 

71 

Edwards  v.  Alliston 

663 

St.  John 

268 

Bishop 

600 

Dumpor's  case 

371 

Bodine 

478 

Duncan  v.  Blackford 

287 

demons 

286 

Duncan 

131,  134 

Edwards 

61 

Forrer 

578 

Hammond 

52^* 

Sylvester 

609 

Inscoe 

382 

Dunch  V.  Kent 

341 

Jones 

393 

Dunconnb  v.  Duncomb         104,  357 

544,  549 

Morgan 

130 

Dundas  v.  Hichcock 

125,  136 

Edward  Seymour's  case 

117,  249 

Dunham  v.  Minard 

424 

Egbert  v.  Thomas 

139,  148 

Osborne 

103,  105 

Ege  V.  Ege 

235,  239 

Dunkle  v.  Adams 

383,  384 

Egerton  v.  Earle 

63 

Dunlap  V.  Gibbs 

1,  3 

Eickelberger  v.  Barnitz 

635 

Dunseth  v.  Bank,  &a 

114,  154 

Eilliam  v.  Moore 

106 

Dunshee  v.  Parmelee 

428 

Ela  V.  Card 

126 

Dunn  V.  Davis 

659 

Eldridge  v.  Forestall 

103 

De  Nuovo 

184,  238 

Knott 

385 

Dunwoodie  v.  Reed                    521 

547,  548 

Preble 

86,  93 

Duppa  V.  Mayo 

238 

Elder  v.  Rouse 

397 

Durands  v.  Wyman 

186 

Elkins  V.  Edwards 

425 

Durant  v.  Johnson 

461 

Ellet  V.  Paxton 

643 

Durham  v.  Alden 

470 

Ellia  V.  Diddy 

141 

Angier 

153 

Ellicott  V.  Mosier 

143,  158,  159 

Wawn 

599 

Pearl 

43,  50 

Durnford  v.  Lane 

583 

Welch 

493 

Dursley  v.  Berkeley 

342 

Elliott  V.  Armstrong           311 

313,  328,  331 

Dutch,  &c.  V.  Mott 

338 

Edwards 

495 

Dutton  V.  Engram 

635 

Elliott 

224 

Du  Vigier  v.  Lee 

423 

Maxwell 

399 

Dwigbt  V.  Newell 

498 

Morrell 

310 

Dwinel  v.  Perley 

431 

Patton 

418 

Dyer  v.  Cady 

470 

PiersoU 

89 

Dye'r 

326 

Sleeper 

443 

Haley 

18 

Smith 

587 

Lincoln 

466 

Stuart 

117 

Lowell 

€08 

Ellis  V.  Guavas 

430 

Dyett  V.  N.  A.  Coal  Ca 

92 

Lewis 

128 

Pendleton 

250 

Paige 

280 

Dyson  v.  Morris 

434 

Welch 

34,  209 

Ellison 

180 

Ellison  V.  Airey 

346 

B 

Daniels 

179,  431 

Ellithorpe  v.  Dewing 

441 

Earl  V.  Hulet 

9 

Ellsworth  V.  Cook 

77 

Earl  of  Belvidere  v.  Rochford 

456 

Mitchell 

436 

Earl  of  Rockingham  v.  Drury 

166 

Else  V.  Osborn 

550 

Earl,  &c.  V.  Taylor 

572 

Klwell  V.  Sylvester 

608 

Eastcourt  v.  Weeks 

192 

Elwes  V,  Maw 

21,25 

SXXVl 


TABLE  OP  CASES  CITED  IN  VOL.  ONE. 


Elwood  V.  Klock 
Ely  V.  McGuyre 
Emans  V.  Turnbull 
Emanuel  v.  Evans 
Embree  v.  Harris 
Emmerson  v.  Harris 
Emery  v.  Harrison 
Owinge 
Emmerston  v.  Heelia 
Empson  v.  Soden 
Ensworth  v.  Griffith 
Enfield  v.  Connecticut 
Engle  V.  Underhill 

Waynes 
English  V.  Foots 
Ensign  v.  Colburn 
Erskine  v.  Townsend 
Eskridge  v.  McClure 
Estcourt  V.  Estcourt 
Euston  V.  Friday 
Evans  v.  Astley 
Bicknell 
Brittain 
Evans 
Elliott 
Hastings 
Hoffman 
Inglehart, 
Kingsbury 
Messilion 
Montgomery 
Roberts 
ShU 

Thomas 
Webb 
Evarts  v.  Nason 
Evelyn  v.  Evelyn 
Evers  v.  Chollis 
Evertson  v.  Sutton 
Ever  V.   Corbett 
Hohbs 
Eving  V.  Arthur 

Beauchamp 
Burnett 
Sa  very 
Ewings  V.  Ennable 


F 


Failing  v.  Schenck 

Fnin  V.  Gartliright 

Fairfax  v.  Montague 

Falkner  v.  Beers 

Falle  V.  Torrance 

Fanning  v    Dunham 

Farley  v.  Craig  232,  242 

Tliompson 
Farmer  v.  Ciiaufette 
Farmers,  &c.  v.  Commercial,  &e. 
Douglass 
Edwards 
Millard 
Seymour 
Farnum  v.  Bontcllo 

Flatt 
Farrar  v.  Ay  res 

Chaffetete 


99,  105 

460 

18 

392 

119 

119 

218 

9 

11 

24 

400 

378 

475 

438 

26 

408 

480 

496,  499 

166 

443 

637 

470 

661 

116,  150 

408,  412 

287 

424 

13 

86 

406 

507 

11 

81 

412 

139 

336 

456 

522 

285 

180 

405,  474,608 

433 

493 

48,  49,  50 

662 

124 


216 

47 

424 

216,  285 

336 

466 

243,  247 

190,  221 

20 

460 

438 

380,  440 

483 

419 

443 

201 

632 

26 


Farrar  v.  Stackpole 
Wintertoa 
Parris  v.  Walker 
Farrow  v.  Farrow 

Rees 
Farwell  v.  Feelis 
Faseant  v.  Lovell 
Fassett  v.  First  Parish 
Faulkner  v.  Daniel 
Paviell  V.  Gaskoin 
Fawcett  v.  Whitehouse 
Fawyer  v.  Fawyer 
Pay  V.  Brewer 
Fay 
Hunt 
Valentine 
Fellows  V.  Fellows 
Lee 

Mitchell 
Feltham  v.  Cartwright 
Pelton  V.  Deall 
Penner  v.  Hepburn 
Ferguson  v.  Cornish 
Ferrall  v.  Kent 
Ferrand  v.  Wilson 
Ferrers  v.  Fermor 
Person  v.  Dodge 
Field  V.  Arrowsmith 
Hallowell 
Hanscomb 
Howell 
Pelot 
Swan 
Wilson 
Fields  &c. 

Fifty,  &c.  V.  Howland 
Finch  V.  Brown 
Finch 
Redding 
Risely 

Throckmorton 
Winchelsea 
Findlay  v.  Hosmer 
Riddle 
Smith 
Pinlay  V.  King 
Finn  v.  Sleight 
Finney  v.  Cochran 
Watkins 
First  V.  Spear 
Pisk  V.  Howland 
Fisher  v.  Barret 

Dewerson 
Dixou 
Fields 
Forbes 
Glover 
Johnson 
Tucker 
Wigg 
Pisk  V.  Chandler 
Eastman 
Lacher 
Fiske  V.  Pramingham 
Pitch  V.  Fitcli 
Mann 
Pitchburg,  &c.  v.  Boston 
Melven 


27 

31 

27 

424 

446 

494,  498 

403 

5 

66 

15 

322 

374 

406,  408 

34,  605,  639,  640 

161 

425,  480,  485 

350 

38 

345 

184,  225 

199 

196 

202 

228 

265 

296 

524 

348,  354 

526 

608 

177 

597 

409,  410 

424 

430 

186,  242 

428 

313 

506 

384 

207 

340,  499 

443 

652,  654 

263,  265 

366,  378,  380 

107 

336 

22,  25 

5 

493,  496 

212 

605 

21 

301,  308,  662 

167 

5 

230 

313,336 

581,661 

385 

103,  144 

353 

199 

571 

44 

224 

190,  250,  251 


TABLK  C 

►F  CASES  cn 

[•ED  IN  VOL.  ONE. 

XXXVll 

Fitelict  V.  Adams 

396,  384 

Fothcrgill  v.  Fotliergill 

168 

Fitzgcnild  v.  Leslie 

635 

Fountain  v.  Coke 

296 

Fitziicrhcrl  v.  Sliaw 

25 

Foust  V.  "Wilson 

505 

FilzlniKl)  V.  Footo 

115 

Fowke  V.  Faughticr                  • 

317 

Flagg  V.  FIngg 

407 

Fowler  v.  Bott             --"•=* 

255 

Mann 

322,  397 

Bush 

.444 

Flagler  v.  Flagler 

129 

Cravens 

218 

Fliinnink 

33 

Griffin 

163 

Flanders  v.  Bristow 

443 

Rico 

396 

Larnphear 

40G 

Shearer 

125 

Flanignn  v.  Feuring 

511 

Thayer 

592 

Fliiiiiiiheii  V.  Lee 

50 

Fox  V.  Lipe 

466 

Fleming  v.  Donahoe 

307 

Phelps   295,  365,  389, 

622,  627,  628, 

Ken 

665 

630 

Fletcher  v.  McFarlane 

187,  252 

Foxcroft  V.  Barnes 

49,  608 

Peck 

38 

Fox  worth  V.  "White 

102,  143 

Robinson 

330 

Francis  v.  Garrard 

145 

Smiton 

629 

Hazlerigg 

495 

Stone 

465 

Franciscus  v.  Reigart 

302 

Flinn  v.  Calow 

192,  236 

Frank  v.  Frank 

165 

Flint,  V.  Ilatcliett 

336 

Main  waring 

60 

Slieldon 

467 

Stovin 

036 

Flournoy  v.  Johnson 

337 

Franklin,  &c.  v.  Blossoms 

460 

Flower  V.  ILirtopp 

188,  232 

V.  Barter 

622,  626,  636 

Floycr  v.  Lnvington 

397,  401 

Fraser  v.  Hamilton 

623 

Foley  V.  Addenbrooke 

22 

Freeland  v.  Southworth 

19 

Folk  v.  WiiiUey 

634 

Freeman  v.  Baldwin 

394 

Follettw.  Reese 

494 

Cram 

511 

Lyrer 

80 

Freeman 

370 

Folsom  V.  Moore 

222,  280 

McGaw 

447,  464 

Folts  V.  Huiilley 

214 

Paul 

182,  448 

Foiincrenu  v.  Fonuereau 

625 

Tompkins 

204 

Foote  V  C  ilvia 

270 

Freligli  V.  Piatt 

5 

Dickinson 

270 

French  v.  Davis 

130,  131 

Forbes  V.  MoQatt 

445 

^Eaton 

607 

Ross 

345 

French 

294 

Smith 

32 

Fuller 

565 

Forbush  v  Philpot 

405,  427 

Lawrence 

250 

Willard 

461 

Peters 

126 

Ford  V.  Ford 

102 

Friedlcy  v.  Hamilton 

395 

(J  rey 

581 

Frischo  v.  Kramer 

476,  478 

Katharine 

323 

Frogmorton  v.  Ilolyday 

632,  634 

Peering 

66 

Frohockv.  Gustine 

602 

Forder  v  Wado 

3;'.o 

Frost  V.  Cloutman 

63 

Foreman  v.  Foreman 

33 

Leering 

125,  126 

Forrester  v  Leigh 

457 

Earnest 

209,  253,  256 

Forris  V.  W:ilker 

27 

Etheridge 

123 

ForsMiih  V.  Clark 

73 

Frost 

381 

Forster  v.  II.de 

308 

Peacock 

124,  415 

Mellen 

463 

Frothingham  v.  ^foCusick 

408 

Forsythe  v  Clark 

312,  315 

Fry  V.  Breckrenridge 

239,  240 

Price 

15 

Porter 

374 

Fortescue  v.  Abbott 

525 

Fryo  V.  Bardc,  &c. 

420,  445 

Satterthwaite 

556,  570 

Porter 

533 

Fortier  V.  Bellance 

210 

Fuller  V.  Ilodgdon 

403 

Fosditk  V   Gooding 

144 

Pratt 

394,  nos 

Fos-Mie  V.  Herkimer 

47,  48 

Van  Geesen 

483 

Foss  V.  Cii<p 

79 

"Wadsworth 

403 

Foster  v.  Hriggg 

470 

"Wason 

112 

Coolc 

131 

Yates 

12D,  622 

<  riige 

627 

Fulton  V.  Stuart 

186 

Diuran 

84 

Fyler  v.  Fyler 

341 

(!-rton 

140.  205 

llilliard 

30,  67 

Juniata 

IS 

G 

Marsiiall 

75 

^unoiior 

201 

Gable  v.  Pacey 

509 

Trustees,  &c.        311, 

312,  493,  496 

'  Gadsden  v.  Lord 

346 

Vol.  l 

I 

) 

XXXVIU 


TABLE  OF  CASES  CITED  IN  VOL.  ONE. 


G-affield  v.  Hapgood 
Gage  V.  Rogers 
Smith 
Ward 
Gahn  v.  Niemcericz 
Gaines  v.  Gaines 
Wilson 
Gaicher  v.  Teague 
Galbreatla  v.  Galbreath 
Galloway  v.  Ogle 
Gait  V.  .lackson 
Gambril  v.  Doe 
Rose 
Gammon  v.  Freeman 
Gang-were 
Gann  v.  Chester 
Ganton  v.  Bates 
Garber  v.  Henry 
Gardiner  v.  Miles 
Gardner  v.  Astor 
Corsen 
Gardner 
Heath 
Ketteltas 
Sheldeu 
Webber 
Garey  v.  May 
Garland  v.  Thomas 
Garrard  v.  Lauderdale 
Garret  v.  Evers 
Garrett  v.  Garrett 
Scouton 
Garris  v.  Garris 
Garson  v.  Green 
Garth  v.  Baldwin 

Gotten 
Gasage  v.  Taylor 
Gates  V.  Green 
Jacob 
Gause  v.  Wiley 
Gay  V.  Baker 
Meriot 
Gee  V.  Gee 

Young 
Geeckie  v.  Monk 
Geeger  v.  Harm  an 
Geer  v.  Hamblin 
Geheebie  v.  Stanley 
Gentry  v.  Woodson 
Wagstaff 
George  v.  Putney 
George's,  &c.  v.  Detnold 

Morgan 
Germond  v.  Jones 
Getman  v.  Getman 
Gibbes  v.  Smith 
Gibson  v.  Bailey 
Cooke 

Crehore        140. 
McKormicke 
Mountfort 
Smith 
Welles 
Zimmerman 
Giddings  v.  Eastman 
Gifford  V.  Barker 
Manly 


22,  25 
17 
'  243 
415 
91 
120 
141 
402 
600,  662 
216 
402 
405 
466 
105,  107 
174 
498 
145 
421 
124 
182,  333,  445 
566 
92,  342 
408 
203 
512 
422 
347 
666 
300 
431 
380 
379 
143 
495 
249 
276,  539,  549,  553 
642 
255 
403,  423 
600 
251 
430 
239 
14 
213 
229 
102 
215 
102 
78 
251 
272 
659,  637 
55 
316 
356 
430,  481 
389 
141.  417,  418,  426 
132,  478 
635 
273 
282 
580 
351,  352 
570 
346 


Gilbert  v.  Chapin 

Dyneley   ' 
Merrill 
Witty 
Gilchrist  v.  Stevenson 
Giles  V.  Baremore 
Gilhooley  v.  Washington 
Gilleland  v.  Failing 
Gillespie  v.  Walker 
Gillet  V.  Stanley 
Gillett  V.  Balcom 
Gilman  v.  Brown 
Wadden 
Stetson 
Ginger  v.  White 
Givens  v.  McCalmont 
Glasgow  V.  Ridgley 
Glass  V.  Ellison 
Glassington  v.  Rawlins 
Glassock  V.  Robinson 
Glegg  V.  Glegg 
Glen  V.  Banks 
Glengall  v.  Barnard 
Glenn  v.  Coleman 
Glenorcby  v.  Bonville 
Glidden  v.  Andrews 

Hunt 
Globe,  &c.  V.  Lansey 
Glover  v.  Archer 
Fisher 
Payne 
Wilson 
Goddard  v.  Bolster 
Chase 
DivoU 

Railroad  Co. 
Godfrey  v.  Humphrey 

Watson 
Godwin  v.  Gregg 

Winsraore 
Goffu.  Kitts 
Golson  V.  Hook 
Good  V.  Lercher 
Goodall's  case 

V.  Rowell 
Goodburn  v.  Stevens  145, 

Goodell  V.  Jackson 
Goodenough  v.  Goodenough 
Goodhue  v.  Barnwell 
Goodman  v.  Goodman 
Grierson 
Kine 
Berriau 
Goodright  v.  AUeu 
Barron 
Cormicke 
Davids 
Dunham 
Fowler 
Goodridge 
Pullyn 
Richardson 
Stocker 
Goodrich  v.  Jones 

Staples 
Goodtitle  v.  Bellington 
Bailey 


662 
346 
454 
668 
350,  355 
424 
244,  253 
468 
332 
601 
407 
493 
481 
599 
650 
263,  427 
227,  230 
405 
201 
493 
167 
126 
67 
506 
59,  655 
478 
438 
487 
237 
339 
402 
189 
26 
26 
349 
280 
627 
427 
576 
330 
11 
44 
88 
392 
464 
156,  459,  578 
38 
147 
450,  616 
92 
397,  402 
408 
437 
622,  632 
622 
634 
207 
521,  650 
47 
620 
648 
176,  201,  202 
632 
27,  279 
478 
532,  556 
477 


TABLE 

OF  CASES  CI 

TED  IN  VOL.  ONE. 

XXXIX 

Goodtitlo  V.  TTerring 

G5I 

Gray  v.  Jenks, 

416,  440 

Knot 

333 

Jolmson, 

212,  216 

Madden 

631 

Parker 

617 

Morgau 

492 

Raw  son          ^ 

185 

Stokes 

661 

Graves  v.  Porter 

188 

Way 

197 

Weld 

13 

Whitty 

524 

Grayson  v.  Moncuro 

147 

Wood  hall 

650 

Great  Falls  v.  Worster 

405 

Goodwin  v.  TTubbard 

41,  318,  351 

Greber  v.  Kleckncr 

262 

Richards 

589 

Green  v.  Armstead 

626 

Stephenson 

405 

Borland 

354 

Gordon  v.  Graham 

421 

Brown 

120 

Ilobart               424, 

469,  481,  484 

Cartwright 

17 

Lewis 

426 

Chester 

420 

Gore  V.  Bacrier 

113 

Crockett 

478 

Floyd 

196 

Demoss 

498,  698 

Jenness 

408,  412 

Bales 

209 

Wright 

184 

Elkins 

645 

Gorham  v.  Daniels 

103,  138 

Ely 

508 

Gorham 

609 

Fowler 

493 

Gorsia  v.  Brown 

437 

Green 

172 

Gorsing  v.  Shreve 

416 

Harvey 

101 

Gorson  v.  Blakey 

403 

King 

580 

Tucker 

90 

Leter 

48 

Gosling  V.  Warburton 

129 

London 

244 

Gott  V.  Cook 

30,  359 

Marsio 

237 

Gougli  V.  Howard 

625 

Putnam 

103,  139,597 

Governors,  &c.  v.  Harreld 

232 

Putney 

347 

Governor  v.  Powell 

460 

Rutherford 

357 

Gould  V.  Kemp 

579,  581 

Spicer 

307 

Newman 

432 

Stephens 

666 

Tancred 

426,  428 

Tanner 

403,  420 

Thompson 

279 

Thomas 

366 

Wamsack 

163 

Winter 

347,  351 

Webster 

13 

Greening  v.  Fox 

347 

Goundie  v.  Northhampton 

89,  612 

Greenlaw  v.  Greenlaw 

48 

Gourdine  v.  Davis 

356 

Greenleafi;.  Francis 

3 

Goudy  V.  Shank 

615 

Greenlovv  v.  King 

349 

Gouvoneur  v.  Bibby 

383 

Greeno  v.  Munson 

216 

Gowen,  &c. 

136 

Greenough  v.  Wiggiston 

500,  510 

Gowing  V.  Rich 

315,  332 

Greenwood  v.  Roth  all 

143 

Grace  v.  Hunt 

430 

Taylor 

443 

Mercer 

470 

Greider,  &c. 

183,  184 

Grady  v.  Bailey 

107 

Greider's  Appeal 

240 

Graff  V.  Castleman 

340 

Gregg  V.  Welles 

470 

Graffith  v.  Tottenham 

46 

Gregory  v.  Paul 

108 

Grafton  v.  Doe 

443 

Gretton  v.  Howard 

130 

Grafton, 

48 

Grey  v.  Grey 

323 

Graggs  V.  Baily 

494 

Grewson  v.  Kissop 

30,  338 

Graghlee  v.  Wheeler 

44 

Griffin  v.  Bixby 

10 

Graham  v.  Barnard 

67 

Macauley 

354 

Dickerson 

32 

Griffith  V.  Beecher 

33 

Donaldson 

300,  307 

Dicken 

43 

Holt 

506 

Evans 

648 

McCambell 

492 

Grimes  v.  Doe 

476 

Sam 

116 

Grimstone  v.  Bruce 

382 

Graidus'  Appeal 

240 

Carter 

396 

Grandison  v.  Pitt 

171 

Grinnel  v.  Baxter 

357,  433,  439 

Granger  v.  Collins 

208 

Griswold  v.  Johnson 

595 

Grant  v.  Chase 

69 

Groff  V.  Leeson 

16 

Duane 

416 

Grotou  V.  Boxborough 

410 

Mills 

495 

Grout  V.  Townsend 

84,  623,  634 

U.  S.  Bank 

420 

Grove  v.  Hooke 

170 

Grantham  v.  Hawley 

10 

Groves  v.  Baily 

4 

Grason  v.  Atkinson 

628 

Grow  V.  Albee 

467 

Gray  v.  Baldwin 

408 

Crowning  v.  Behn 

493 

Bates 

43 

Grubb  V.  Guilford 

10 

Blanchard 

370,  382,  384 

'  Grugeon  v.  Garrard 

419 

xl 


TABLE  OF  CASES  CITED  IN  VOL.  ONE. 


Grugcon  v.  Girard 
Grugliter  v.  Wlieeler 
Grumble  v.  Jones 
Grundj^  v  Grundy 
Grimes  v,  Bowereo 
Gubbins  v.  Creed 
Gudgell  V.  Duval 
Guier  v.  Kelly- 
Guild  V.  Kogers 
Guion  V.  Anderson 
Gunn  V.  SeoviU 
Gunning  v.  Gunning 
Guthie  V.  Gurdner 
Gullirio  V.  Guthrie 

Sorrell 
Gvvynne  v.  Cincinnati 

Jones 

H 

Haekenbury  v.  Carlisle 
Haddock  v.  BuUinch 
Hadle  v.  Hoaly 
Had  ley's,  &c. 
Hadley  v.  Ciiapin 
Haggard  v.  Rout, 
Haggin  v.  Haggin 
Hagthorpe  v.  Hook 
Halcombe  v.  Ray 
Hale  V.   Estcott 
Glidden 
James 
Rider 
Hales  V.  Petit 

Rislej', 
Haley  V.  Bennett 
Hall  V.  Bell, 
Byrne 
C'liaffee 
Cushinan 
Deneh 
Dewey 
Hall 
MD.ifif 
Say  re 
Seabriglit 
Stewart 
Tut'ts 
Haliett  V.  Collins 
Wylie 
Hallock  V.  Suiitli 
Haiso  V.  Wright 
H;ilsey  V.  Reed 
Ilaaibh'tt  V.  Ilamblett; 
Hamiiliii  V.  B:\uk 
llauiillon  v.  Bishop 
JOIhott 
J':iy 
Harris 
Hempstead 
Hughes 
Mohun 
O'Niel 
Hamlin  v.  Hamlin 
JI:immersloi]'s  c-aso 
HamiiiiL-k  v.  Bronson 
HammiMid  v.  Barrium 

Hammond 


443 

Hammond  v.  Hopkins 

394,  398 

44 

Washington 

438 

630 

Hampton  t;.  Broom 

509 

153 

Hodges 

408 

22 

Spencer 

309,  396 

402 

Hanbury  v.  Hussey 

604 

286 

Handy  v.  Leavitt 

609 

350 

Hancock  v.  Day 

59t 

239 

Hanly  v.  Sprague 

340 

77 

Hanna  v.  Wilson 

494 

244 

Hannah,  &c. 

402 

266 

Hannan  v.  Osborn 

52T 

326 

Hanson  v.  Derby 

410 

623, 

633 

Willard 

609 

478 

Hapgood  V.  Bent 

59 

115 

Harcall  v.  The  Madison 

365 

207 

Harcourt  v.  Poole 

Seymour 
Hard  v.  Wadhara 
Harder  v.  Harder 

235 
30 

381 
314,  323 

348 

Harding  v.  Springer 

580 

439, 

443 

Hardman  v.  Shumate 

229 

424 

Hardy  v.  Commercial,  &c. 

443 

35G 

Reeves 

424 

445 

Seycr 

531 

524 

Summers 

613 

605 

Hare  v.  Groves 

255 

311 

320 

Harger  v.  Edwards 

210 

394 

Hargrave  v.  King 

371 

543 

Harker  v.  Birkbeck 

9 

48 

Conrad 

510 

115 

Harlan  v.  Harlan 

29 

473 

Harmel  v.  Lucas 

542 

59 

Harmon  v.  Short 

401 

539, 

543,  544, 

545 

Harriet,  &c. 

430 

482 

Harpending  v.  Dutch 

600 

435 

Harrington  v.  Barton 

608 

397 

Price 

492 

558 

Wise 

195 

478 

Harris  v.  Barrett 

307 

405 

De  Graffenreid 

540 

218 

Evans 

202 

127 

Fly 

483 

490 

Gillingham 

6 

91 

Goodwin 

190 

194, 

223 

Jones 

212 

216 

Miller 

1 

3-69 

532 

Mott 

87 

340 

571 

Preston 

616 

255 

Riding 

8 

493, 

494 

Shaw 

363 

300 

Harrison  v.  Battle 

332 

442, 

452 

Belsey 

543 

13(1 

Eldridge 

473 

143 

581 

Ferth 

419 

3^7 

Lemon 

393 

318, 

:-;8G 

Mack 

338 

272 

Monnomy 

313 

307 

Phillips 

400 

62 

Trustees,  &c. 

394 

115 

Ilarsand  v.  Hardy 

424 

141 

Marsha w  v  Davis 

146 

133, 

134 

Hart  V.  Chalker 

421 

330 

Gregg 

322,  599 

298 

Hawkins 

315 

580 

Johnson 

233 

505 

Middlelmrst 

646 

G22, 

627 

Windsor 

255 

TABLE  OF  CASES  CITED  IN  VOL.  ONE. 


Hnrten  v.  Tlarten 

304 

Hcl borne  v.  Brown 

G 

I-I  art  shorn  v.  Hubbard 

407 

Helfoinstein  v.  Garrard 

294 

Harlshorno  v.  Watsou 

246 

11  el  field  V.  Newton 

467 

Ilartz  V.  Woods 

416 

llellawell  v.  Eastwood 

22 

Harvey  v.  Aston 

369, 

574 

Ilelmcr  y  Shoemaker  — 

623 

Olmsted 

<;2s, 

632 

Helmpold  V.   Man 

445 

Harvy  v.  Damo 

377 

Helps  V.  Hereford 

222 

Hasbrook  v.  Paddock 

364, 

387 

Flemings  v.  Brubason 

178 

Hasrall  V.  Key 

18,  19 

Hempshill  v.  Eckfeldt 

251 

Haskell  v.  Haskell 

440 

Hempstead  v.  Hempstead 

313 

Haslaw  V.  Ilaslaw 

19 

Henderson  v.  Harrod 

43 

Haslott  V.  Glenn 

13,14 

Lowry 

484 

Hastings  v.  Crunkleton 

263 

Hendricks  v.  Robinson 

421 

Clifford 

133, 

136 

Henklej;.  Allstadt 

437 

Dickinson 

126,  164, 

172 

Henry  v.  Davis 

398 

Hasty  V.  Wheeler 

264 

Fullerton 

400 

Haswell  v.  Goodchild 

511 

Henson  v.  Coopo 

221 

Hatch  V.  Dvvight 

430 

Hepburn  v.  Dubois 

88 

Kimball 

445 

Snyder 

412 

Smith 

49 

Hepworth  v.  Heslop 

470 

White 

486 

487 

Herbert  v.  Parsons 

169 

Hatcher  v.  Hampton 

272 

Wren 

127 

147 

Hatton  V.  Wiser 

92 

Hesler  v.  Pott 

292 

Haven  v.  Foster 

458 

Hesseltine  v.  Leavey 

183 

Hemmingvfay 

363 

H-eth  V.  Richmond 

340 

Low 

405 

Hethnrington  v.  Graham 

101 

Hawell  V.  Hunt 

661 

Hethman  v.  Walton 

28 

Hawkins  v.  Kelly 

258 

Hef  itt  V.  Hewitt 

277 

May 

421 

Isham 

223 

Pago 

144 

Loose  more 

492 

Sheff 

14 

Heydon  v.  Smith 

261 

Skigg 

376 

Heyer  v.  Pruyn 

425 

433 

Hawley  v  Bradford 

417 

Hey  ward  w.  Cuthbert 

96 

,145 

James        30, 

127,  133,  136, 

356. 

Heywood  v.  Miller 

199 

360,  561 

562 

Hibbet  v:  Spurrier 

461 

Loper 

608 

Hickman  v.  Irvine 

263 

Northampton 

56,  61,  647 

666 

Quinn 

402 

,  658 

Hayworth  v.  Herbert 

101 

Hicks  V.  Bingiiam 

420,443 

Wallace 

510 

Cochran 

370 

Hay  den  v.  Stoughton 

368 

Hicks 

«6,  398 

402 

Haydon  V.  Evving 

119 

Hiern  v.  Mill 

490 

Hayer  v.  Pruen 

451 

Hiesterv.  Maderia 

398 

Hayes  v.  Foorde 

641 

Higbee  v.  Rice 

591 

Hayner  v.  Hayner 

168 

Higginbotham  v.  Crowoll 

129 

133 

Haynes  v.  Powers 

146 

Higgins  V.  Bruen 

97 

Hays  V.  Ward 

437 

Frankis 

437 

Hayter  v.  Rods 

18! 

Higglesworth  v.  Dallison 

15 

Hay  ward  v.  Cuthbert 

155 

Highway  v.  Banner 

646 

Ellis 

348 

350 

Hilchens  v.  Hilchens 

105 

Haywood  v.  Ensley 

349 

Hildreth  v.  Jones 

415 

Judson 

604 

Thompson 

138 

Moore 

527 

Hill's  case 

233 

Head  v.  Egerton 

435 

492 

Hill  V.  Barclay 

383 

Heap  V.  Barton 

24 

Bishop 

252 

Heard  v.  Fairbanks 

12 

Grange 

388 

Heardon  v.  Williamson 

633 

Hill 

216 

Hearle  v.  Greenbank 

329 

Jordan 

409 

Heath  v.  Dendy 

132 

Pay son 

472 

Williams 

220 

Smith 

415 

446 

Hebron  v.  Centre 

392 

West 

90 

Heck  V.  Clippenger 

643 

Woodman 

210 

Hedge  v.  Holmes 

474 

Hillary  v.  Pollock 

509 

Heeny  v.  St.  Peters 

4 

Walter 

335 

Heermance  v.  Vernoy 

12,  27 

Hilliard  v.  Belford 

128 

135 

Hefifner  v.  Knapper 

635 

637 

Hills  V.  Doe 

591 

Tount 

367 

Elliott 

511 

Heighway  v.  Pendleton 

405 

476 

Hillyer  v.  Bennett 

468 

Heimstreet  v.  Howland 

199 

Hilton  V.  Granville 

272 

xlu 


TABLE  OP  CASES  CITED  IN  VOL.  ONE. 


Himershits  v.  Bernhard 

135 

Holms  V.  Williams 

627,  628 

Hiuchman  v.  Graham 

510 

Holt  V.  Robertson 

597 

Lybrand 

510 

Holton  V.  Brown 

485 

Hinde  v.  Gray 

210 

Tremper 

244 

HiDgham  v.  Sprague 

199,  565 

Trout 

311 

Hinman  v.  Boaslaugh 

642 

Holtpzaffell  v.  Baker 

255 

Covanway 

42 

Hone  V.  Fisher 

397 

Hinton  v.  Hintoa 

135,  583 

Van  Schaick 

359 

Hitchcock  V.  Carpenter 

107 

Honor  v.  Honor 

645 

Harrington, 

144.  146,  415 

Honore  v.  Bakewell 

493,  494 

Skinner 

609 

Honywood  v.  Honywood 

557 

Hitchens  v.  Hitchens 

104,  128 

Hood  V.  Phillips 

445 

Hitchman  v.  Walton           175, 

408,  563,  567 

Hooglaud  V.  Watt 

415 

Hoagland  v.  Latourette 

498 

Hooker  v.  Hooker 

544 

Hoatz  V.  Patterson 

503 

Hudson 

465 

Hoave  v.  Harris 

337,  338 

Hooper 

419 

Hobart  v.  Abbott 

478 

V.  Ramsbottom 

435,  492 

Hanrich 

49 

Hoops  V.  Parsons 

503 

Sanborn 

406 

Hoot  V.  Sorrell 

127 

Hobbs  V.  Harvey 

106,  113 

Hoover  v.  Wheeler 

508 

Norton 

470 

Hopewell  v.  Ackland 

628 

Hobby  V.  Pemberton 

484 

Hopkins  v.  Carey 

326,  332 

Hobson  V.  Bell 

403 

Conrad 

510 

Sherwood 

605 

Frey 

115 

Hoby  V.  Hoby 

157,  158 

Garrard 

493 

Hockley  v.  Bantock 

491 

Hopkins 

302 

Hodgdon  v.  Naglee 

432,  438 

Hulmore 

236 

Hodge  V.  Att'y,  &c. 

490 

Ward 

334 

Hodges  V.  Croyion 

•i23 

Hopper  V.  Hopper 

146 

Gates 

279 

Liscoe 

420 

Hodges 

369 

Horlock  V.  Smith 

427 

Hodgkinson  v.  "Wyatt 

466 

Home  V.  Lyeth 

650,  652 

Hodgson  V.  Ambrose 

641 

Horney  v.  Goings 

604 

Shaw 

437 

Horsey  v.  Horsey 

90,  204 

HoEFar  v.  Deaient 

585 

Horsfall  v.  Key 

18,  19 

Hoffman  v.  Lee 

471 

Horton  v.  Buskirk 

609 

Hogan  V.  Stone 

347,  426 

Whitaker 

523 

Weleher 

617 

Hosford  V.  Merwin 

604 

Hogeboom  v.  Hall 

377,  379,  386 

Hoskins  v.  Featherstone 

268 

Hogel  V.  Lindell 

397 

Helm 

191 

Hoggat  V.  "Wad© 

493,  494 

Rhoades 

200 

Hogius  V.  Arnold 

390,  396 

Hough  V.  Birge 

263,  279 

Hogle  V.  Stuart 

153 

De  Forrest 

447 

Hohly  V.  German 

227 

Doyle 

476 

Holabird  v.  Burr 

426,  435,  437 

Martin 

273 

Holbrook  V.  Finney 

106,  591 

Houghtaling  v.  Houghtaling 

1 

Holcomb  V.  Holcomb 

478,  479 

Houghton  V.  Bartholomew 

460 

Holcroft 

525 

Cooper 

266 

Holden  v.  Gilbert 

403 

Hapgood 

80,  81 

Holder  v.  Coates 

10 

Houston  V.  Jamison 

144 

Holderness  v.  Carmarthen 

58 

Sprague 

366 

Holdfast  V.  Marten 

627 

Stanton 

579 

Holditch  V.  Holditch 

128 

Hovey  v.  Blanchard 

284 

Holdship  V.  Abercrombie 

507 

Holcomb 

307,  397 

Holeridge  v.  Gillespie 

398,  402 

Smith 

20,  240 

Hoi  ford  V.  Hatch 

185 

Howard  v.  Agry 

490 

Holland  v.  Pack 

38 

Candish 

158 

HoUiday  v.  Marshall 

187 

Dill 

239 

Overton 

617,661 

Ellis 

184,  189 

HoUis  V.  Pool 

288 

First  Parish 

5 

Thayer 

311 

Halsey 

438 

Holman  v.  Bailey 

443 

Harris 

398 

Bank  &e., 

438 

Howard 

469 

Exton 

72 

Lincoln 

10 

Holme  V.  Harrison 

630 

Robinson 

405,  508 

Holmes  v.  Grant                  393,  394,  396,  402 

Sedgeley 

565 

Fisher 

406 

Shaw 

244 

Meynell 

661 

Turner 

366 

TABLE  OF  CASES  CITED  IN  VOL.  ONE. 


xliii 


Howe  V.  Bishop 
Blaiiden 
Lewis 
Wildes 
Howel  V.  Ashmore 

Ilowel 
Howell  V.  Baker 
Howell 
Price 
Webb 
'Howery  v.  Goinpfs 
Howland  v.  Coffin 

Hecksher 
Hewlett  V.  Thompson 
Hoxie  V.  Carr 

Hoxie 
Hoy  V.  Mester 
Hubbard  v.  Ascutney,  &c., 
Austin 
Bagshaw 
Cummings 
Hubbard 
Norton 
Savage ' 
Hughes  V.  Edwards 
Hughes 
Kearney 
Trustees 
Hugunin  v.  Starkweather 
Hulbert  v.  Grant 
Huling  V.  Drexoll 
Humbert  v.  Rector 
Hummerston's  case 
Humphrey  v.  Finney 
Snyder 
Humphreys  v.  Harrison 
Hungerford  v.  Anderson 

Clay 
Hunt  V.  Comstock 
Hazleton 

Hunt  51,  385, 

Maynard 
Mullaophy 
Stiles 
Watkins 
Hunter  v.  Brown 
Chrisman 
Grant 
Hunter 
Macklew 
Oaterhout 
Huntington  v.  Mountjoy 

Smith 
Hurd  V.  Cass 

Gushing 
Darling 
Grant 
Huskisson  v.  Bridge 
Huston  V.  Wickersham 
Hutcherson  v.  Heirs 
M'Nutt 
Hutchins  v.  Lee 
Shaw 
Hyde  v.  Dallaway 

Hyde 
Hyland  v.  Stafford 
Hyndman  v.  Eyndman 


318 

25,  596 

439 

41 
88 
646,  664 
348,  351 
282 
424 
244 
82,  604 
185,  188,  221 
130 
492 
311,  312,  319 
357 
623 
419 
43 
20,  24 
468 
132,  598 
222 
421 
423,  473 
524 
496 
219 
443 
352 
398 
423 
298 
113 
394 
403 
627,  667 
412 
193 
193 
430,  447  477 
613 
21 
480,  488 
13,  62,  67 
615 
44 
479 
460 
478 
236,  389 
9 
404,  433 
91 
65 
197 
143 
624 
182,  334 
384 
389 
320 
6 
412,424 
151 
467 
403 


I 


Ibbotsou  V.  Beckwith 

026 

Ibbetson 

2,  459 

Iddings  V.  Bruon 

342,  346,  348,  349 

Nagle 

194,  200 

Idle  V.  Cook              _-  - 

620 

Ilderton  v.  Ilderton 

97 

lllingworth  v.  Miltenberg 

3r                 241,  505 

Inches  v.  Leonard 

435,  436 

Inge  V.  Boardman 

137 

Ingersoll  v.  Knowlton 

625 

Sawyer 

465 

Sergeant 

221,  231,  252,  259 

Ingraham  v.  Baldwin 

84 

Dunnell 

566 

Ingram  v.  Morris 

106 

Smith 

484 

In  man  v.  Jackson 

633 

Ipswich,  &c.  V.  Story 

447 

Ireson  v.  Denn 

419 

Irven  v.  Campbell 

499 

Irving  V.  Thomas 

236 

Irwin  V.  Farrar 

623 

Farris 

349 

King 

615 

Tabb 

436 

Irwin's,  &c.  v.  Longworth 

437 

Isaac  V.  Clark 

219 

Isham  V.  Morgan 

3 

Ives  V.  Legge 

519,  522 

Ivie  V.  Ivie 

66 

Izon  V.  Gorton 

254,  281 

J 

Jackman  v.  Ringlaud 

316 

Jackson  v.  Agan 

375 

Aldrich 

282 

Andrew 

266 

Aspell 

152 

Bowen 

467 

Bronson 

406 

Brownell 

200,  373 

Brown  son 

185,  207,  262,  263 

Brush 

190 

Bryan 

280 

Bull 

630 

Cairns 

85  , 

Cator 

261 

Churchill 

146 

Claw 

109 

Cobbin 

208 

Golden 

466 

Crafts 

381 

Crisler 

389 

Davis 

190,  216,  439 

Delacroix 

196 

Delancy 

190,  412,  430 

Dewitt 

150 

Dominick 

467 

Durland 

526 

Eddy 

253 

Edwards 

611 

Forrest 

316 

Fuller 

407,  41 

Gardner 

183 

Hallock 

495 

xliv 


TABLE  OP  CASES  CITED  IN  VOL.  ONE. 


Jackson  v.  Harris 

Harrison 

Henry 

Hopkins 

Hughes 

In  grab  am 

Jackson 

Johnson 

Eeisselbrach 

Kipp 

Laughhead 

Leeds 

Leek 

Luguere 

Mancius 

Marsh 

Matsdorf 

McConnell 

Moncrief 

Moore 

Myers 

O'Donaghy 

Packard 

Patterson 

Pesked 

Pierce 

Robbins 

Rounseville 

Rowland 

Sellick 

Sheldon 

Schoonmaker 

Sisson 

Slater 

Stevens 

Sublett 

Topping 

Van  Hoesen 

Van  Slyck 

"Waldron 

"Welden 

Willard 

Winne 

"Woodman 

Jacobs  V.  Graham 

James  v.  Dran 
Pisk 
Johnson 
Morey 
Roberts 
Scott 

James,  &c. 

James'  claim 

Jameson  v.  McCredy 

Jamieson  v.  Bruce 

Janney  v.  Sprigg 

Jaques  v.  ElsJer 
Gould 

Trustees,  &c. 
Weeks 

Jarrot  v.  Vaughn 

Jarvis  v.  Buttrick 
Prentice 
Quigley 

Jason  V.  Eyres 

Jasper  v.  Maxwell 
Howard 

Jeffers  v.  Radcliff 


631 

Jefferson  v.  Durham 

26T 

372 

Jemmot 

V.  Cooly 

242 

466 

Jenoks 

V.  Alexander 

326 

-     410 

Jenifer  v.  Beard 

307 

280 

Jenison 

V.  Graves 

311,  313 

38 

Jenkins 

V.  Church 

206 

396 

Eldridge         194,  319,  346,  347, 348 

48,  76,  77,  568 

428 

195 

Toung 

295,  296 

243 

Jeuks  V 

Backhouse 

63 

410 

Ward 

460 

85 

Jenner 

L'.  Morgan 

257 

587 

Tracy 

424 

661,  666 

Jenness 

V.  Robinson 

419 

69 

Jenney 

V.  Alden 

318,  324 

468 

Jennings  v.  "Ward 

399 

323,  325 

Wood 

439 

588 

Jennison  v.  Hapgood 

351,  418,  458 

196 

Lexington 

235 

335 

Jenny  v 

Jenny 

119 

617 

Jervis  v. 

Bruton 

59,  371 

142 

Jervoise 

V.  Northumberland 

301 

466 

Jesser  v 

Gifford 

564 

287 

Jew  V.  Thirdwell 

251 

566 

Jewell  V 

.  Harrington 

107 

335 

Jewett  I 

.  Burroughs 

83 

623 

Partridge 

6 

5 

Patrid*e 

406 

218 

Stockton 

595 

53,  77,  568 

Ware 

47 

245 

Jobsen  i 

.  Boden 

503 

567 

John  V.  Jenkins 

196 

334 

Johns  J/', 

Bolton 

610,  511 

424 

Church 

218 

588 

Johns 

110 

513 

Johnson 

V.  Bartlett 

430,  433 

387 

Beauchamp 

244 

65 

Bowie 

420 

333 

Candage 

419,  480 

556 

Carter 

288 

217 

> 

Corbett 

30 

405,  415 

Elliott 

113 

525 

Farlon 

43,  48 

•41 

Gine 

468 

201 

Hart 

431,  587 

322 

High 

188 

89 

Jones 

412 

182,  438.  441,  445 

Kerman 

627 

182,  421 

Lewis 

225 

463 

Mcintosh 

38 

38 

Morton 

624 

647 

Neil 

150,  157,  189 

652 

Perley 

112 

224 

Shields 

138,  139 

405 

Somers 

193 

81 

Stagg 

492 

468 

Sugg 

494 

212,  238,  239 

Thomas 

147 

92 

Valentine          519, 

524,  527,  528 

393,  394,  396,  398 

White 

408,  438 

34 

Johnston 

V.  Jones 

251 

662 

Jones  V. 

Alexander 

507 

329 

Betsworth 

479 

660 

Bramblet 

621 

398 

Brewer 

150,  160 

337 

Bruce 

459 

92 

Bush 

300 

593 

Chiles 

48 

TABLE  OF  CASES  CITED  IN  VOL.  ONE. 


xlv 


Jones  V.  Clark 

Creswicke 
Doe 
Flint 
Hancock 
Hill 
Jones 
Lfiugliton 
Morjzan 
Muldrow 
Piittcrson 
Phelps 
Head 
Rej-nolds 
Roe 

Slierrard 
Slubey 
Smith 
Snelson 
Stanton 
Steinbergh 
St.  John 
Stockett 
Thomas 
Woathersbee 
Jordon  v.  Corey 

Savage 
Joslin  V.  Hammond 
Joye  V.  Gunnels 
Joyner  v.  Vincent 
Jo^'nes  V.  Slatham 
Judd  V.  Fulton 
Judson  V.  Emanuel 
Jumel  V.  Jumel 
Juvenal  v.  Jackson 


412 
480 
617 

12 

507 

2G8 

278,  281 

G45 

59,  67 

287 

87,  143 

435 

24.3 

196 

34 

67,  84,  61(5 

316 

419,  470 

27,  53 

600 

478 

478 

338,  347 

348,  407,  460 

601 

89 

166 

632 

68 

399,  408 

396 

176 

478 

451,  452 

252 


K 


Kane  v.   Bloodgood  336 

Gott  30 

Vanderburg  273 

Kannnn  V.  Rimington  612 

Kannon  v.  Pillow  273 

KaulTett  v.  Bower  499 

Keach  v.  Sandford  322 

Kearney  v.  Post  209,  215,  393 

Keatinj,'  v.  Smith  665 

Ke.ay  v.  Goodwin  190,  205,  282,287,  59C,  598 

Keech  v   Hall  40S 

Keen  v.  Deardon  305 

Keene  v.  Dickson  522 

Keepers,  &c.  v.  Alderton  266 

Keith  V.  Swan  47  7 

Keller  V.  Michael  123,  133 

Kelleran  v.  Brown  3  96 

Kelley  v.  "Weston  227 

Kellogg  V.  Blair  630 

Dickinson  5 

Kellogg  602 

Rand  437 

Smith  38 

"Wood  338, 440 

Kelly  V.  Beers  398,  460,  461 

Bryan  396 

Burnham  460 

Ciiapman  504 

Dutch  209 


Kelly  V.  Thompson 

393, 

394 

•    "VVaito 

282 

Kelsey  v.  Hanraer 

84 

Kemp  V.  Earp 

391 

Kern  pton  U.Swift        ,_ 

627 

Kenada  v.  Gardner 

219 

Kendall  v.  Garland 

192,  205, 

216 

Hovey 

147 

Moore 

211, 

287 

New  England 

346 

Kenege  v.  Elliott 

232, 

241 

Kennaird  v.  Adams 

469 

Kennedy  v.  Fury 

334 

Kennedy 

301 

McCartney 

38 

Mills 

129, 

130 

Nedrow 

96, 

130 

Kennerly  v.  Missouri,  &c. 

112 

Kennick  v.  Beauclerc 

307 

Kennon  v.  McRoberts 

629 

Kent  V.  Harpool 

544 

Steward 

542 

Kenyon  v.  Nichols 

18 

Keppel  V.  Jackson 

503 

Kerr  v.  Day 

33 

Gilmore 

594 

Kitchen 

232 

Merchants 

4 

Murphy 

348 

Kerrick  v.  SafTery 

478 

Keyes  v.  "Williams 

491 

"Wood 

431 

Kidd  V.  Dennison 

260,  276 

277 

Kiddall  v.  Trimble 

145,  147 

153 

Killick  i;.-Fleany 

322 

Flexney 

350 

Killinger  v.  Beidenhauer 

469 

Kilpatrick  v.  Kilpatrick 

493 

Kimball  v.  Second 

6 

Smith 

460 

Kimmell  v.  "Willard 

435 

Kinch  V.  "Ward 

181 

King  V.  Axbridge 

48 

Beck 

641 

Boys 

295 

Bromley 

400 

Bullock 

601 

Burchall 

653 

Cotton 

552 

Duntz 

404 

Fowler 

16 

Hamlet 

572 

573 

Kincey 

395 

King 

397 

526 

McVickar 

437,  440 

478 

Melling 

650 

Miras 

70 

Murray 

216 

220 

Paddock 

73 

Rumball 

638 

Sharp 

68 

State,  &c. 

434, 

435 

"Watson 

565 

"Wilcock 

25 

"Vi''ilcomb 

23 

579 

Kingbury  v.  Collins 

281 

Kingdorae  v.  Bridge 

326 

Kinge  v.  Lachenour 

216 

xlvi 


TABLE  OF  CASES  CITED  IN  TOL.  ONE. 


Kingley  v.  Ames 

288 

Lane  v.  Dobyns 

601 

Kingman  v.  Sparrow 

53,  107. 

115 

Erskine 

478 

Kingsland  v.  Rapelye 

636,  562 

659 

Lano  V.  Gould 

49 

Kingsley  v.  Ame3 

403 

Hawkins 

621 

"School  Directors 

205 

Hitchcock 

408 

Kinley  v.  Hill 

445 

King 

16,  411 

Kinuey  v.  Doe 

216 

Losee 

466 

Ensign 

447 

Lanfair  v.  Lanfair 

398 

Kinsell  v.  Daggett 

494 

Langan  v.  Henderson 

433 

Kinsley  «.  Abbott 

586 

Langdon  v.  Keith 

432 

Williams 

494 

Paul 

408,  488 

Kinsman  v.  Green 

53 

Langley  v.  Baldwin 

638 

Kintner  v.  McRae 

118 

Langworthy  v.  Chadwick 

272 

Kirzee  v.  Trustees,  &c 

193 

Lanoy  v.  Duke,  &c. 

437 

Kip  V.  Denistou 

354 

Laning  i;.  Goelet 

487 

Kirby  v.  Tead 

510 

Pine 

609 

Kirch  u.  "Ward 

59 

Lapsley  v.  Lapsley 

638 

Kirger  v.  Day 

83 

Larcom  v.  Cheever 

85,  86 

Kirk  V.  Taylor 

190 

216 

Large's  case 

514 

Kirksey  v.  Mitchell 

494 

Larned  v.  Bridge 

623 

Kisler  i;.Kisler 

308,  311, 

314 

Larrabee  v.  Lambert 

435 

Kitchen  v.  Shats 

614 

Larsh  v.  Larsh 

661 

Kite  V.  Brown 

43 

Lasher  v.  Lasher 

96,  128,  130 

Kittredge  v.  Locks,  &c. 

601 

Lasselle  v.  Barnett 

460,  471 

Rockingham 

435 

Latham  v.  Atwood 

13 

"Woods 

13 

Latham 

142 

Kleiser  v.  Scott 

492,  493, 

496 

Laughlin  v.  Ferguson 

441 

Kline  v.  Beebe 

77 

205 

Laughter's  case 

380 

Lewis 

498 

Lauman,  &c. 

508 

Klock  V.  Cronkhite 

416,  441 

447 

Lausdale  v.  Gierke 

479 

Kneider  v.  Kneider 

123 

Laviolette  v.  Redding 

506 

Knetzer  v.  Wysong 

565 

Law  V.  Patterson 

600 

Knickerbacker  v.  Boutwell 

437 

Lawrence  v.  Bayard 

556 

Knight  V.  Frampton 

330 

Boston 

397 

Selby 

295 

633 

Brown 

120 

Knocker  v.  Bunbury 

34 

Fletcher 

488 

Knowles  v.  Maynard 

409 

Hunter 

43 

■Spence 

424 

Kemp 

19,  24,  28 

Knox  V.  Jenks 

41 

Lawrence 

129 

Moatz 

437 

Miller 

93,  124 

Kottman  v.  Ayer 

287 

Williams 

185,  241 

Kramer  v.  Bank,  &c. 

421 

437 

Lawson  v.  Morton 

147,  158 

Krider  v.  Safiferty 

194 

Sutherland 

420 

Kuhn  V.  Haler 

112 

Lawton  v.  Lawton 

20 

Knnckle  v.  Holfersberger 

398 

402 

Layton  v.  Butler 

138 

Kylerj;.  Tait 

494 

Leach  v.  Trollop 

169 

Kynaston  v.  Clarke 

570 

Leake  v.  Randall 
Learned  v.  Cutler 
Leavitt  v.  Lamprey 

129 
126 
105 

L 

Wooster 
Lechaweaver  v.  Stower 

627,  630 
122,  123 

Lachland  v.  Downing 

644 

Leehmere  v.  Lechmere 

166 

Lackett  v.  White 

382 

Lecompt  v.  Wash 

93,  101,  143 

Ladd  V.  Abel 

13 

Ledbetter  v.  Gash 

603,  616 

Ladd 

92 

Lee  V.  Alsten 

274 

Lady  Stowell's  case 

90 

Chambers 

505 

Lagow  V.  Badollet 

498 

Lee 

116 

Lake  v.  Delembert 

356 

Munroe 

470 

Lakeman  v.  Butler 

626 

Stephens 

632 

Lamar  v.  Scott 

109 

Stone 

420 

Lamb  v.  Foss 

406 

Leeds  v.  Cameron 

421 

Goodwin 

470 

Doughty 

273 

Lambert  v.  Paine 

627 

Legate  v.  Sewel 

647,  648 

Lamerson  v.  Marvin 

483 

Leggett  V.  Dubois 

317 

Lamott  V.  Sterett 

255 

Perkins 

359 

Larooureux  v.  Van  Denburgh 

471 

Leigb  V.  Bean 

508 

Lamplugh  v.  Lamplugh 

313 

,323 

Leigh  V.  Brace 

620 

Landen  v.  Beauchamp 

284 

Leighton  v.  Leightou 

273 

TABLE  OF  CASES  CITED  IN  VOL.  ONE. 


xlvii 


Leitch  V.  Little 

59t 

Lloyd  V.  Brooking 

543, 

545 

Leland  v.  Gassett 

20 

Carew 

542 

Leland  v.  Loring 

488 

Hough 

244 

Leiiian  v.  Miles 

22 

Lloyd 

376 

Newiiliam 

456 

Mackworth  ^ 

* 

336 

Whitley 

317 

Mason           ~^' 

426 

Lemon  v.  Lemon 

128 

Spillett 

312, 

314 

Lench  v.  Lench 

324 

Lock  V.  Be  Burgh 

235 

Lenoir  v.  South 

44 

Lockhart  v.  Hardy 

486 

Leonard  v.  Earl,  &c. 

554,  654 

Lockwood  V.  Sturdovant     ' 

448 

Leonard 

157,  600 

Lode  V.  Hamilton 

31 

McCool 

280 

Logan  V.  Dunlop 

504 

Morris 

432 

Green 

183 

Steele 

130 

Lomax 

169 

Lepman  v.  Thomas 

505 

London  v.  Fairclougli 

316 

Leroy  v.  Piatt 

27 

London 

120 

147 

Sayle 

596 

Long  V.  Dennis  " 

375 

Lessee,  &c.  v.  Butler 

477 

Fitzsimmons 

212 

Lethieullier  v.  Tracy 

522 

Mart 

48 

Leverett  v.  Harris 

344 

Longert  v.  Breden 

506 

Redwood 

483 

Longfellow  V.  Quimby 

602 

Lewis  V.  Baldwin 

586 

Loiigley  V.  Hall 

347 

Caerton 

163 

LongstafFw.  Meagoe 

28 

DeForest 

421,  427,  437 

Long-street  v.  Ketcham 

384 

James 

113 

Shipman 

441 

Lyman 

200 

Loomer  v.  Wheelwright 

445 

468 

Morrraau 

115 

Wilbur 

266 

269 

Nangle 

457 

Loomis  V.  Ratler 

210 

Payu 

252 

Lorel  V.  Brown 

241 

Smith 

.     478 

Lord  Derby's  case 

516 

Starke 

431 

Stafford's  case 

533 

Lewisburg  v.  Augusta 

367 

Lorilard  v.  Coster 

358 

Lewthwaitei;.  Clarkson 

490 

Loring 

495 

Leihty  v.  Hager 

87 

V.  Bacon 

4 

597 

Liford's  case 

2,  27,  59 

Cooke 

420 

Li£ft  V.  "Walker 

393 

Melendy 

214 

Lincoln  College  case 

164 

Steineman 

73 

'Lincoln  v.  Durmmond 

386 

Lothrop  V.  Arnold 

602 

Edgecomb 

49 

Lott  V.  Wyckoff 

634 

669 

Linden  v.  Hepburn 

187 

]jOud  V.  Lane 

445 

Lindsay  v.  Pleasants 

30 

Love  V.  Dennis 

216 

Lindsey  v.  Plainer 

312 

Edmonson 

278 

Stevens 

67 

Lovell  V.  Leland 

488 

Line  v.  Stephenson 

198,  209 

Lovering  v.  Fogg 

396 

Lining  v.  Peyton 

341 

Lovering 

209 

261 

Linslee  v.  Brown 

88 

Low  V.  Burrow 

72,  116 

247 

Linton  v.  Boly 

239 

Lowe  V.  Morgan 

478 

Lippen  v.  Eldred 

628 

Lowell  V.  Daniels 

477 

Liptrot  V.  Holmes 

305 

Spaulding 

211 

Liscomb  v.  Root 

600,  605 

Lowry  v.  Drake 

379 

Lister  V.  Lister 

604 

Loyd  V.  Curriu 

392 

Zolley 

209 

Lucas  V.  Dennison 

424 

Litchfield  v.  Cudworth 

464 

Lockhart 

300 

Ready* 

388,  408 

Luckey  v.  Holbrook 

406 

Lithgow  V.  Cavenagh 

630 

Luddington  v.  Kyme 

520,  521 

652 

Little  V.  Palister 

280,  282,  283 

Ludlow  V.  Grayall 

499 

Littlefield  v.  Crocker 

128,  415 

Lull  V.  Matthews 

392, 

408 

Kimball 

461 

Lund  V.  Lund 

393 

394 

Livermore  v.  Aldrich 

313 

Woods 

415 

Livesay  v.  Harding 

666,  667 

Lunsford  v.  Alexander 

216 

Livingston  v.  Clarkson 

611 

Lunt  V.  Brown 

565 

Haywood 

565 

Lnshiogton  v.  Boldero 

277 

Livingston 

90 

Lutwych  V.  Win  ford 

345 

Mott 

507 

Lyddall  v.  Weston 

335 

Reynolds 

272,  278 

Lyddel  v.  Weston 

8 

,346 

Stickles 

247,  372 

Ly  ford's  case 

10 

Llewellin  v.  Mackworth 

336 

Lyler  v.  Digge 

651 

Lloyd  V.  Baldwin 

341 

Lyman  v.  Green 

493 

xlviii 


TABLE  OP  CASES  CITED  IN  YOL.  ONE. 


Lyman  v.  Hale 

10 

Marshall  v.  Stephens 

351 

Lyou  V.  Hunt 

272 

Stewart 

400 

Lvon 

119 

Martin  v.  Bowker 

424 

Lyster  v.  Holland 

416 

KnowUys 

598 

Lylle  V.  Lytle 

619 

Martin 

91,  92, 

327 

Pope 

Mowlin 
Rapelye 
Smith 

430, 

439 
396 
664 

M 

Waddell 

38 

Marwilk  v.  Andrews 

669 

• 

Mason  v.  Allen 

139 

Finch 

600 

Macliell  V.  Weeding 

639 

Jones 

359 

Mackay  v.  Proctor 

78 

Luke 

606 

Mackerell  v.  Clark 

59,  60 

Mason 

333, 

359 

Maclot  V.  Dubrenil 

4' 

,  50 

Maaengill  v.  Boyles 

177 

Maekreth  v.  Symmons 

494 

Massina  v.  Bartlett 

479 

Maddox  V.  Goddard 

261, 

598 

Masters  v.  Pollio 

10. 

Madeii  v.  Veavers 

599 

Mather  v.  McMichael 

230 

Magee  v.  Fisher 

205 

Matiies  V.  Bennett 

139 

Mellen 

121 

Matter  of  Hall 

73 

Magennis  v.  McCullough 

183 

Howett 

510 

Magoiui  V.  Lapham 

41 

Matthew  v.  Manning 

524 

Magruder  v.  Peter 

493 

Matthews  v.  Aikin 

437 

Maharu.  O'Hara 

300 

Matthews 

611 

Maiiower  v.  Harrison 

312 

314 

Temple 

538 

541 

Malcolm  v.  Malcolm 

647 

"Wallwyn 

438 

Malin  v.  Malin 

313, 

315 

Ward 

42 

334 

MarideviJle  v.  "Welch 

490 

Matthewson  v.  Smith 

415 

Maiideville's  case 

6-il 

Miittoeks  V.  Stearns 

78,  8 

2,  85 

Mangut  V.  Townley 

605 

Maury  v.  Mason 

336 

Manhattan,  &c.  v.  Greenwich 

483 

Maxwell  v.  Monlacut© 

396 

Manly  V.  Slason 

493, 

494 

M'Clintock 

524 

Mann  z;.  Richardson 

419 

May  V.  Hook 

583 

Manners  v.  Charlesworth 

611 

Mayburry  v.  Biern 

148,  414 

581 

Manning  v.  Laboree 

125 

14:^ 

Mayo  V  Fletclier 

287,405 

407 

Manning 

346 

Mayor,  &c.  w.  Attorney,  &c. 

35t 

Parish 

340 

Mayrant  v.  Guignard            . 

342 

Manning.  &c. 

540 

May  wick  v.  Andrews 

382 

Manse  v.  Buchanan 

119 

M'Call  V.  Cooner 

43 

Mansell,  &c. 

459 

Eastwick 

509 

V.  Mansell 

550 

553 

Lenox 

405,  408 

410 

Manser  v.  Marshall 

659 

M'Callister  v.  Brand 

136 

Mansfield  v.  Blackburne 

23 

MCartee  v.  Teller 

167 

Dugard 

524 

M'Carlhy  v.  Gordon 

156 

Mansony  v.  U.  S.,  &c. 

410 

M  Caskle?;.  Amarine 

230 

Maplea  v.  Howe 

155 

M'Clanahan  v.  Porter 

145 

Medlin 

340 

M'Olure  v.  Donthill 

90 

644 

March  v.  Berrier 

32 

Harris 

123,  165, 

494 

Marcy  v.  Darling 

8 

M'Connell  v.  Hodson 

431 

Marcy 

601 

AVilcox 

37 

Marker  v.  Marker 

276 

M'  Coon  V.  Smith 

221 

Marks  v.  Marks 

378 

M'Cormick  v.  Digby 

412 

443 

Pell 

396 

Taylor 

160 

Marney  v.  Bird 

185 

M'Corry  v.  King 

78 

Marquis,  &c.  v.  Higgins 

399 

M'('osker  «.  Brady 

302 

Marriott  v.  Givens 

334 

M  Creary  v.  Cloud 

145 

Marseilles  v.  Kerr 

184 

Ross 

601 

Marsellis  v.  Thalimer 

18 

537 

M'Cullough  V.  Caldwell 

508 

510 

Marsh  v.  Current 

261 

Irvine 

262 

Rice 

446 

M'Cullough,  &c. 

373 

Turner 

495 

M'Daniel  v.  Douglass 

136 

Marshall  v.  Anderson 

145 

,  147 

Priest 

89 

Bond 

448 

Zclf, 

324 

Ciiristmas 

493 

M'Daniels  v.  Colvin 

421 

Conrad 

271 

Lapham 

428 

Crehore 

605 

607 

M'Dermott  v.  Palmer 

511 

McPherson 

156 

M 'Donald  v.  Alteu 

96 

TABLK  OF  CASES  CITED  IN  VOL.  ONH. 


xlix 


M'Donald  v.  Black 

434 

Methodist.  &c.  v.  Jaquea 

326 

Lindall 

510 

Meyer  v.  Campbell 

405 

M'Leod 

402 

Mcyro  v.  Giles 

583 

Sims 

336, 

424 

Meyrick  v.  Wishlaw 

G64 

M'Klroy  v.  Wathen 

145 

Miami,  &c.  v.  Baidc,  4c^ 

437 

M'Farlon  v.  AVutson 

185 

Micliael  v.  Miciiacl 

348 

M'Foely  v.  Mooro 

G58 

Mickletliwaite  V.  Winter 

8,9 

M'Geo  V.  Gibson 

227 

Middlebury,  &c.  v.  Lawson 

283 

M-Giii  V.  Ash 

598 

Middlesex,  &c.  v.  Minot 

404, 

443 

M'Ginnis  v.  Forster 

526 

Mildmay's  case 

60 

M  Given  V.  Wlieelock 

443, 

445 

Mildred  v.  Neill 

124 

McGregor  V.  Toomcr 

529 

Miles  V.  Comstock 

441 

M'liityro  V.  Ilumphreya 

396 

Hull 

466 

Wliitlield 

406 

Millay  v.  Millay 

48 

MTver  v.  Cherry 

102 

Miller  v.  Beates 

73 

M'Keon  v.  Whitney 

185, 

245 

Beverly 

143 

M'Kilhp  V.  M'Killip 

494 

Donaldson 

447 

M'Kinney  v.  Reader 

183, 

187 

Hamblett 

393 

M'Kissick  V.  Pickle 

363, 

368 

Lvnn 

626 

M'Lacklan  v.  M'Lacklan 

380 

M'iller             70,  157, 

591,  G05 

061 

M'Lngan  v.  Brown 

504 

Musselman 

437 

M'Lanalian  v.  M'Lanahan 

394 

Oliver 

510 

M'Laren  v.  Turner 

6H0 

Plumb 

26 

Watson 

19:5 

Seagrave 

647 

M'L;iughlin  v.  Shephard 

3'^'5 

Sta.^iier 

236 

M'Leaii  v.  Lalayetto 

438 

Stump 

414, 

493 

MDoiiald 

624 

"Wilson 

116 

M'Lellan  v.  Nelson 

92 

Mills  V.  Wetheiington 

616 

M'Malian  v.  Kimball 

123 

147 

Millspaugh  V.  M'Brido 

448 

M'Meekcn  v.  Marman 

332 

Mihier  v.  Ilarewood 

134 

M'MillL-n  V.  Rohbins 

170 

Milton  V.  Colby 

6 

M'Mulliii  V.  M'MuUin 

359 

Hoguo 

601 

M'Murphy  v.  Miiiot             181, 

188,  242 

412 

Minis  V.  Macon 

492 

M'Murray  v.  Rawson 

596 

Miner  V.  Stevens 

406 

M'Xisli  V.  Gerrard 

356 

Miniiing  v.  Batdorff 

626 

643 

M'l  aggart  v.  Tiiompson 

405 

Minskcr  v.  Morrison 

334 

M"Vay  V.  Bloodgood 

433 

Mitchell  V.  Billingsley 

11 

M'Wiiliams  v.  Nisby 

56 

Blain 

132 

Meacliam  v.  Fituiiburg 

405 

De  Rocho 

334 

Stearna 

346 

Hazen 

694 

Means  v.  Welles 

46 

Holmes 

346 

Mechanics'  Co.  v.  Edwards 

182 

Lite 

43 

Williama 

85 

Mitchell 

123 

,  163 

Meeheelan  v.  Wallace 

281 

Preston 

466 

Megargel  v.  Saul 

499 

Sevier 

85 

MegKi-'OM  V.  Foster 

490 

Speedley 

25 

Meheflfy  v.  Dobba 

612 

U.  S. 

33 

Meigs  V.  Uiriiock 

496 

Warner 

1.  3 

Mellon  V  Lees 

398 

401 

Mix  V.  Cowlcs 

421 

Mehiy  v.  Cooper 

493 

Ely 

509 

Melvin  v.  Pruprielora 

84 

Hotchkisa                427 

442,  510 

,  511 

Meiiiloo  V.  Menifeo 

141,  148 

,  511 

MofTatt  V.  Smith 

210 

Menougli 

236 

Moldey 

32 

Menude  v.  Delairo 

402 

Monell  v.  Monell 

345 

Mervill'scase 

76 

Monk  V.  Cooper 

255 

Mi-ranian  v.  Caldwell 

75,  86 

,  2S4 

Montague  v.  Gay 

257 

Merger  v  Seiden 

76 

Monteill  V.  I'^vaiis 

511 

Mert-dilh  v.  Andrea 

GOl 

Montgomery  v.  Bruero 

392,  405 

,  415 

Jones 

296 

Ivea 

78 

Mercs  v.  Mnr::iiiroyd 

31 

Monypenny  v.  Dering 

463 

Meriarn  v.  Ilarsen 

88 

Mooily  V.   Elliott 

622 

MeiTi.iMi  V.  Morriam 

481) 

King 

06 

,  117 

Merrick  v.  Lewis 

194 

Moody 

598 

Mernlieid  v.  Cobleigh 

389 

,  397 

Mooney  v.  Evans 

615 

Merrill  v.  livown 

332 

Moore  v.  Cable 

427 

I'linery 

13.'j 

,  380 

(Campbell 

43 

Merriit  v.  LMiniiert 

39i 

,  482 

City 

IDS 

,  l"-i4 

Messiler  v.  Wright 

412 

,  489 

Degraw 

426 

1 


TABLE  OP  CASES  CITED  IX  VOL.  ONE. 


Moore  v.  Denn 

EUisworth 
Bsty 
Fletcher 
Gilliam 
Green 
Harrisburg 
Hussey 
Lyons 
Maddon 
Moherly 
Moore 
Parker 
Savil 
Spelnian 
Wallace 
Webb 
Moore's,  &c. 

Moorhouse  v.  Wainbouse 
Morancy  v.  Buford 
Mordecai  v.  Tankersly 
Morehouse  v.  Cotbeal 
More's  case 
Morgan  v.  Arthur 
Ballard 
Bissell 
Davis 
Larned 
Moody 
Tipton 
Morner  v.  Miller 
Morrall  v.  Luther 
Morris  v.  Harring 
Kiffin 
Mowatt 
M'Connaghy 
Nixon 
Ward 
Way 
Morrison  v.  Temple 
Tenney 
Morton  v.  Barrett 

South  gate 
Moses  V.  Murgatroyd 

Wait 
Mosher  v.  Mosher 
Moshier  v.  Reding 
Moss  V.  Gallimore 
Hawkins 
Mott  V.  Clark 

Walkley 
Moulton  V.  Norton 
Mountague  v.  Maxwell 
Muirhead  v.  Muirhead 
Mulliday  v.  Machir 
Mumford  v.  American,  &c. 

Whitney 
Mumraa  v.  Mumma 
Munday  v.  Vawter 
Munroe  v.  Allaire 
Murcell  v.  Roberts 
Murdock 

Murdock  v.  Hughes 
Murphy  v.  Murphy 
Murray  v.  Armstrong 
Ballou 
Cargill 
De  llotterham 


628 
269 

104,  107 
3 
106 
336 
445 
201 
626 
393 
437 
587 
536,  622,  660 
369 
333 

143,  152 
622 
438 
557 
365 
334 
61,  262,  660 
171 
510 
231 
196 

424,  439 
78,  270 
227 
466 
278 
64 
236 
237 
412 
452 

397,  398 
648 

460.  466 
'  622 
284 
302 
337 
31,  396,  403,  428 
274 

112,  114 
194 

190,  408 
557 

416,  438 
413 

198,  240 
171 
152 
246 
466 
222 

323,  325 
342 
404 
568 
353 

312,  330 
143 
278 
340 
5 
347 


Murrey  v.  Fishback  4:24 

Murry  v.  Wyse  628 

Musgrave  v.  Dashwood  583 

Le  Hooka  419 

Musket  V.  Hill  222,  384 

MusseUnan  v.  Eshleman  353 


N 


Naglee  V.  IngersoU  221,250 

Nagle's  Appeal  32 

Nairn  v.  Rouse  494 

Nance  v.  Hooper  119 

Nan  fan  v.  Leigh  634 

Nannock  v.  Horton  623 

Napier  w.Elam  438,470 

Naples  V.  Minier  460 

Nash  V.  Butler  650 

Cutler  525 

Spofford  90 

Nason  v.  Grant  41 

Nathans  v.  Morris  347 

Naylor  v.  Winch  353 

Nazareth  v.  Lowe  472 

Neale  ?;.  Hagthorp  311,427 

Neate  v.  Pink  338 

Neef'us  v.  Vanemere  466 

Neely  v.  Butler  76,  77 

Neilson  v.  Neilson  602 

Lagow  405,  618 

Nellis  ?;.  Lothrop  219 

Nerhooth  v.  Althous  218 

Nettleton  v.  Sikes  10,  11 

Neves  v.  Scott  301 

Nevill  V.  Nevill  663 

Neville  v.  Saunders  304 

Nevvall  v.  Wright  251.  411,  436 

Newell  w.  Gibbs  218 

Newcomb  v.  Smith  86 

Newcourt  v.  St.  Peter's,  &c.  424 

Newhall  v.  Wheeler    295,  301,  334,  346,  643 

New  Hampshire,  &c.  v.  Willard  443 

Newkirk  v.  Newkirk  34,  366,  370 

Newland  v.  Shepard  625,  634 

Newman  v.  James  85 

Jenkins  85 

Rutler.  192,  245 

Newman  v.  Warner  355 

New  Orleans,  &c.  v.  Hogan  391 

Newton  V.  Allin  250 

Griffith  62 

Hunt  571 

Reid  369 

Nicholls  V.  Butcher  628 

Nicliols  V.  Cossett  466 

Dusenburg  211.  240,  241 

Reynolds  47 

Williams  279,  285 

Nicholson  v.  Halsey  333 

Laudersdale  336 

Nicoll  V.  Walworth  179,  306 

Nightingale  v.  Burrell  637,  639 

Niles  V.  Nye  415 

Stevens  355 

Noble  V.  Bos  worth  27 


NAMES  OF  CASES  CITED  IN  VOL.  ONE. 


li 


Noel  V,  Bewloy 

588 

Palmer  w.  Wetmore 

253 

Norfolk  V.  Brown 

320 

Yates 

438 

Norniiui  V.  Cunningham 

U,  507 

Papillon  V.  Voice 

647,  652, 

654 

North  V.  Belden 

421 

Paramour  v.  Yardly 

620 

Crowell 

422 

Pardee  v.  Van  Arken  — 

478 

Northeii  v.  Steele 

12 

Parham  v.  Parham 

174 

Northrop  v.  Wright 

43 

Thompson 

12 

Northcut  V.  Whipp 

102 

Paris  V.  Vail 

229 

Norris  v.  Wilkinson 

491 

Parish  v.  Gilmanton 

405 

Norton  v.  Coone 

437 

Rhodes 

323 

Ladd 

628 

Parker  v.  Barker 

469 

Leonard 

303 

Bragg 

307 

Norton 

295,  306.  393 

Brown 

44 

Stone 

368^  483 

Curtes 

77 

Warner 

432 

Elder 

206 

Norwood  V.  Marrow            107 

120,  142,  161 

Gibbins 

254 

Nott  V.  Foster 

356 

Harvey 

161 

Nottingliani  v.  Calvert 

106 

Kelly 

494 

Jennings 

636 

Lincoln 

379 

Nourse  v.  Finch 

328 

Parker 

113 

139 

Noyesv.  Anderson 

178,254 

Proprietors 

001 

Clarko 

419,  438 

Stainland 

12 

Dyer 

43,  47 

Parker's  Appeal 

230 

Sturdevant 

395,  424 

Parkins  v.  Cartwell 
Coxe 

336 
263 

0 

Parkman  v.  Welch 
Parks  V.  Boston 

419 
209 

Oakes  v.  Marcy 

42 

Brooks 

115 

O'Brien  v.  Elliott 

122,  147 

Parks 

358 

O'Conner  v.  Tynes 

245 

Parsons  v.  Camp 

222 

Oddie  V.  Woodford 

58 

Mum  ford 

393 

O'Donnell  v.  M'Murdee 

245 

Welles 

392,  439 

440 

O'Keefe  v.  Kennedy 

190 

Winslow 

376 

Oldham  v.  Henderson 

78,  84 

Partridge  v.  Bere 

401 

408 

Olrastead  v.  Olmstead 

621 

Parvis  v:  Brown 

416 

668 

Orde  V.  Smith 

425 

Pary  v.  White 

668 

Orford  v.  Churchill 

626 

Pasley  v.  Englis 

50 

Orvis  V.  Newall 

420 

Passmore  v.  Moore 

306 

Osborne  v.  Ballow 

43 

Pasteur  v.  Jones 

211 

265 

Ostrander  v.  Kneeland 

144 

Pate  V.  Barrett 

623 

Livingston 

187 

Paterson  v.  Lang 

233 

Otis  V.  Parshley 

103 

Patterson  v.  Boston 

209 

256 

Smith 

4 

John 

495 

Otley  V  M'Alpine's  heirs 

615 

Patty  V.  Pease 

438 

442 

Overton  v.  Norfolk 

604 

Pawlet  V.  Clarke 

206 

Oves  V.  Oglesby 

22,  27 

Pawlett  V.  Attorney-General 
Payne  v.  Payne 

413 

430 
329 

P 

Sale 
Payton  v.  Steth 

643 

658 
218 

Packard  v.  Packard 

527 

Paxton  V.  Harron 

438 

Packington  v.  Packington 

297 

Paxon  V.  Paul 

472 

Padleford  v.  Padleford 

262,  263,  268 

Peaceable  v.  Reed 

601 

Page  V.  Foster 

402,  427 

Pearce  v.  Coden 

4 

Hill 

219 

Colden 

215 

Page 

318,  341 

Pearsdall  v.  Kingsland 

466 

Paget  V.  Gee 

257 

Pearson  v.  Clemson 

349 

Paget's  case 

270 

Pearson 

132 

Pain  V.  Smith 

490 

Pease  v.  Bancroft 

461 

Paine  t.  Gupton 

93 

Benson 

480 

Samms 

387 

Owens 

65 

619 

Webster 

340 

Pebus  V.  Milford 

298 

Painter  v.  Henderson 

353 

Peck  V.  Northrop 

236 

Palmer  v.  Ayre 

48 

Hapgood 

477 

Eyre 

424 

Peebles  v.  Lassitus 

230 

Foote 

416 

Pegues  V.  Peguea 

317 

Gumsey 

392 

Pelte  V.  Clark 

449 

Jackson 

424 

Pendleton  v.  Fay 

340 

Mead 

468,  482 

Penhay  v.  Harrell 

298 

539 

lii 


TABLE  OF  CASES  CITED  IN  VOL.  ONE. 


Penn  v.  Lord  Baltimore 

357 

Pitt  V.  Petway 

349 

Pennants'  case 

207 

Pitts  V.  Hendrix 

12 

Peniiiinau  v.  Mollis 

397 

477 

Planters,  &c.  v.  Halker 

12 

Pennington  v.  Yell 

138 

139 

Ph.ylbrd  V.  Piciyford 

399 

Pennock  v.  Hoover 

511 

Plcake  V  Chambers 

47 

Pen  ton  v.  Robart 

22 

Plummer  v.  Neile 

388 

Peabody  v.  Patten 

98 

Plunkett  V.  Holmes 

544 

Tarbell 

276 

317 

Lewis 

323 

People  V.  Conklia 

52G 

Ponson 

415 

Haskins 

231 

Plymouth  v.  Archer 

277 

Livingstone 

37 

Poignard  v.  Smith                   49,  52, 

432, 

462 

People,  (tc.  V.  Society,  &c. 

369 

Poinde.ster  v.  McCannon 

392 

Peppard  V.  Deal 

628 

Pole  V.  Pole 

324 

Peppercorn  v.  Peacock 

630 

636 

Polk  V.  Farris 

658 

Pocock 

512 

Pollard  V.  Shouffer 

212 

Perkins  v.  Dibble 

394, 

430 

Pomeroy  v.  Winship 

460 

480 

Drye 

398 

Pond  V.  Clark 

422 

Hays 

322 

Poole  V.  Hathaway 

445 

Pitts 

443 

444 

Poole 

651 

Perrin  v.  Blake 

659 

Pooley  V.  Budd 

34 

Lyons 

657 

Popkin  V.  Bumstead 

444 

Perrot  v.  Ferrot 

272 

Pope  V.  Biggs 

411 

Perry  v.  Adams 

461 

Orslen 

417 

Aid  rich 

257 

Porsay  v.  Kain 

609 

Briggs 

636 

Port  V.  Kearney 

187 

Mc  Henry 

312 

Porter  v.  Bank 

304 

Pearson 

397 

Clements 

419 

I'liillips 

320 

Doby 

301 

648 

Peter  v.  Russell 

470 

Gordon 

280 

Peterson  v  Willing 

396 

Hill 

593 

Petiibone  v.  Griswold 

421 

MiUett 

462 

Stevens           427 

437,  442 

482 

Nelson 

398 

PettingiU  V.  liv&ua 

29 

410 

Porter 

336 

Pettman  v.  Bridges 

6 

Portland  v.  Fox 

426 

473 

Petty  V.  Doe 

285 

Porimore  v.  Taylor 

572 

Sty  ward 

577 

I'ost  V.  Leet 

483 

Pilaris  V.  Lech  mere 

141 

Potter  V.  Everett 

139 

Phelps  V.  Butler 

460 

Potter 

121 

Jepson 

586 

Wheeler 

157 

Long 

284 

Poltre  V.  Towcker 

166 

628 

Sage 

472 

Potts  n.  Curtis 

572 

Philbrook  v.  Delano 

320 

Powell  V.  M.  &  B.  Manuf.  Co. 

113 

Phillip  V    Kwers 

323 

Monsoa                        120 

148 

149 

Phillips  V.  Cramond 

315,  317 

320 

Powell 

159 

615 

Humphrey 

300 

Triplett 

240 

Rhodes 

18 

Powers  V.  Ingraliam 

284 

Sinclair 

424 

Powers 

473 

Phillipsoii  V.  Mullanphy 

27 

Powsciey  v.  Blackman 

406 

Piiip  ird  V.  Mansfield 

668 

Poyntncll  v.  Spencer 

468 

Phip[)s  V.  Ackers 

524 

Prill t  V.  Bank 

447 

Phylb  V.  Warden 

213 

Tiiornton 

348 

413 

Phyiord  V  Wardell 

322 

Van  Wyck 

336 

492 

Pickard  v.  Sears 

470 

Pray  v.  Pi-ay 

116 

Pickering  v    Pickering 

379 

Presliyierian  Church  v.  Andrews 

4 

Pickt-r.-*  V   Wilson 

144 

Pi'escott  V.  Nevers 

47 

Picket  V.  Brcckenbridge 

245 

President,  kc.  v.  Chambers 

468 

Pickett  V.  Peavy 

130 

Preston  v.  Christian 

413 

Pray 

132 

I'revost  V.  Gratz 

309 

Pidge  V.  'I'yler 

41 

Price  V.  Blakeman 

336 

Pierce  v.  I'otter 

416 

,470 

Lyon 

4 

601 

Pierre  p)n  I  v.  Bernard 

223 

Methodist 

5 

Pifer  V.  W.ird 

504 

511 

AVilliams 

176 

Pik'.'  V.  Jowen 

51  1 

Priest  V.  Cmninings 

127 

Pilkin>iton  v.  Bradley 

321 

Prime  v.  Stebbing 

170 

Pillsitury  V.  Pillsbury 

310 

Prindlew.  Anderson            245,  281 

285 

286 

Pimb's  lase 

295 

Pritcliard  v.  Brown                      318, 

340 

460 

Pinkhain  v.  Grear 

144 

I'robort  V.  Morgan 

170 

Pinson  V.  Ivcy 

308 

Proctor  V.  Keith 

183 

TABLE  OF  CASES  CITED  IN  YOL.  ONE. 


liii 


Proctor  V.  Thall 

441 

Rankin  v.  Oliphant 

94,  145 

Possett,  &c.  V.  Methodist, 

&C.                      3G4 

Ten brook 

190 

Pursut 

41 

Ranyan  v.  Merscreau 

431 

Proseiis  V.  Mclutyre 

324 

Rasor  v.  Quails 

14 

Pryer  v.  Duncan 

644 

Rathbone  v.  Clark                      * 

442 

Pulliam  V.  Pyrd 

624 

Rathbun  v.  Coltoa         "  "         339, 

347,  348 

Pulling-  V.  The  People 

176 

Rathbun 

-348 

Purdusoa  v.  Brown 

460 

Ravarty  v.  Fridee 

125 

Purccll  V.  "Wilson 

699 

Rawley  v.  Adams 

30 

Purd  V.  "Whitney 

339 

Holland 

299 

Purefoy  v.  Purofoy 

419 

Rawlings  v.  Stewart 

427 

Rogers 

543,  554 

Rawlinson  v.  "Wass 

622 

Pusey  V.  Cluson 

347 

Rawson  v.  Eicke 

196,410 

Putnam  v.  Fisher 

49 

Ray  V.  King 

330 

"Wise 

196,  199,  200 

Raymond  v.  Andrews 

268 

Putney  v.  Day 

223 

Holden 

89-90 

Dresser 

592,  515 

Raynham  v.  Snow 

477 

Pye  V.  George 

552 

"Wilmarth 

148,  415 

Pyle  V.  Pennock 

29 

Read  v.  Errington 

298 

Pynchon  v.  Stearns 

181,  260 

Thompson 

216 

Reading  v.  Blackwell 

30-31 

Royston 

581-600 

Reat  V.  Powell 

625 

Q 

Rector,  &c. 

176 

Rector  of  Cheddington's  case 

557 

Quackenbush  v.  Leonard 

350 

Reed  v.  Bigelow 

461 

Quarriiijiton  v.  Arthur 

200 

Campbell 

120 

Queen  v.  St.  Margaret 

34 

Davis 

406 

Quennell  v.  Turner 

450,  627,  630 

Dickerman 

134 

Quim  V.  Brittain 

427 

Hatton 

632 

Quincy 

28 

Kennedy 

581 

Quinebaug  v.  French 

421 

Reed 

427,  428 

Tarbox 

285 

Reese  ■;;.  Waters 

79 

Quint  V.  Little 

488 

Reeve  v.  .Allen 

342 

Long 

537,  543 

Reeves  v.  M'Kenze 

289 

Regina  v.  Fogassa 

59 

R 

Haslam 

19 

Rehner  v.  Zeigler 

511 

Eabe  v.  Fyler 

582 

Rehoboth  v.  Hunt 

10 

Pack  left'  V.  Norton 

474 

Reid  V.  Campbell 

133 

Pack  ley  v.  Sprague 

26 

Stevenson 

108 

Kadliurn  v.  Jervis 

1,  58 

Stoney 

238 

Radclille  V.  D'Oyly 

268 

Reinhart  v.  Bank 

4.37 

Eafli  I'ty  '('.  King 

478 

Reinicker  v.  Smith 

596 

Raiford  v.  Raiford 

347 

Remington  v.  Cady 

581 

Rail  V.  I'olison 

624 

Renwick  v.  Macomb 

479 

Railroad  v.  Boyer 

565 

Representatives  v.  Comptroller 

495 

Kidd 

274 

Reps  V.  Bonham 

621 

Eaine  v.  Alderson 

10,  177,  264,  566 

Reves  v.  Heme 

374 

Rains  v.  Ware 

38 

Rex  V.  Matlingley 

405 

Raiuslbni  v.  Rainsford 

345 

Minchin 

262 

Ralls  V.  Hughes 

153 

St.  Michael's 

405 

Ralph  V.  Bailey 

43 

"Williams 

577 

Ralston  v.  Hughes 

405 

Reynard  v.  Spence 

131,  157 

Rainbo  v.  Bell 

141 

Reynish  v.  Martin 

378 

Ramsay  v-  Dosier 

153 

Reynolds  v.  Clark 

86 

Randall  v.  Cleveland 

271,565 

Monkton 

4 

Doc 

327 

•  Reynolds 

102,  104 

Phillips 

589,  590 

Sherler 

19 

Rich 

184,  251 

"W'illianis 

566 

Rigby 

186 

Rhoades  v.  CanQeld 

436 

Randell  v.  Mallett 

436,  442 

Parker 

406 

Randol|ili  v.  Carlton 

218 

Rice  V.  Adams 

21 

Rands  v.  Kendall 

116,  415 

Barnard 

578 

Ratigeley  v.  Spring 

87-90,  470,  480 

Rich  V.  Baker 

273 

Rank  v.  Hnnk 

227 

Loud 

608 

Rankin  v.  Mortimer 

398 

Rich.  Liford's  case 

267 

YOL.   L 

E 

liv 


TABLE  OF  CASES  CITED  IN  VOL.  ONE. 


Rich  V.  TTaters 

524,  569 

Robertson  v.  Stevens 

78,  379 

Richards  v.  Bergavenny 

647 

Robi 

ns  V.  Crutchley 

97 

Carl 

590 

Kitchin 

221 

Cooper 

479 

Robi 

nson  V.  Bates 

126 

Folsom 

42 

Brown 

44 

Eichards 

119,  213 

Collier 

469 

Richardson  v.  Boright 

468 

Comyns 

375 

Field 

467 

Cropsey 

402 

Ridgely 

493 

Green 

11 

The  State 

355 

Guild 

466 

York 

263,  274 

Hicks 

638,  639 

Richie  v.  M'Cauley 

230 

Kettletas 

214 

Rickard  v.  Salbird 

145,  153 

Leavitt 

419,  445 

Rickard 

600 

Leeroyd 

289 

Rickett  V.  Sullick 

281 

Litton 

276 

Rider  v.  Mason 

362 

Miller        70,  105 

138,  154,  638 

Riddick  v.  Walsh 

84,  93,  108 

Pett 

345 

Riddle  v.  Emerson 

312 

Preswick 

28 

Riddlesberger  v.  :ifeutner 

119 

Robinson 

475,  639 

Ridgeley  v.  Carey 

338 

Turner 

479 

Iglehart 

493 

Robison  v.  Codmau 

103,  328,  331 

Johnson 

355 

Robson  V.  Far  well 

307 

Rawling 

■  261 

Rochford  v.  Harkman 

68,  369,  390 

Ridgway  v.  Stafford 

241 

Rocls 

inffham  v.  Penrice 

238 

Ridgway,  &c. 

579 

Rockwell  V.  Bradley 

408,410 

Ridout  V  Payne 

629 

Hobby 

490,  499 

Rigden  v.  Vallier 

577,  583,  661 

Rodgers  v.  Lathrop 

227 

Riggs  V.  Dooley 

47 

Rodgers 

272,  273 

Sally 

63,  634 

Roe 

V.  Avis 

636 

Right  V.  Creber 

527,  529 

Baron 

628 

Proctor 

194 

Clayton 

667 

Righter  v.  Statt 

466 

Couch 

416 

Riglerz;.  Cloud 

81,  356 

Galliers 

371,  373 

Rigney  v.  Lovejoy 

431 

Grew 

654 

Riker  v.  Darke 

609 

Griffiths 

557 

Riley  v.  Clamorgan 

155 

Harrison 

207,  372 

Dairy  m  pie 

18 

Popham 

288,  299 

Rinehart  v.  Harrison 

81 

Reade 

333 

Olivine 

227,  279 

Soley 

419 

Ring  V.  Argand 

279 

Tranmer 

541 

Ringgold  V.  Ringgold 

345,  348 

Rogers  v.  Colt 

328 

Riply  V.  Tale 

48,  219 

DeForest 

359 

Waterworth 

71,  72 

Grazebrook 

406 

"Wightman 

254 

Grider 

588 

Rising  V.  Stannard 

280,  282 

Ludlow 

304 

Ritchie  v.  Putnam 

139 

Maule 

490 

Williams 

447 

Moore 

42 

Rittenhouse  v.  Severing 

149 

Phillips 

510 

Rivis  V.  Watson 

259 

Rawling 

388 

Roach  V.  Cosine 

353 

Rogers 

345,  659 

Robb  V.  Ankenny 

63 

Ross 

357 

Robbins  v.  Bates 

396 

Skillirome 

342 

Eaton 

468 

Woodbury 

7 

Robbins 

117 

Rolfe 

V.  Harris 

383 

Roberts  v.  Barber 

15,  18 

Rollestone  v.  Morton 

490 

Barker 

279 

Rollins  V.  Moor 

281 

Bozon 

403 

Somerville 

277 

Davey 

388 

Roni 

ig 

612 

Dixwell 

•    654,  655 

Rood 

V.  Winslow 

468 

Halstead 

431 

Roon 

V.  Murphy 

494 

Long 

45 

Root 

V.  Bancroft 

437 

Rose 

492,  498 

Stow 

437 

Salisbury 

498 

Teomans 

337,  345,  353 

Sennel 

286 

Roscanick  v.  Barton 

392 

Williams 

460 

Rose 

V.  Hayes 

269 

Roberts,  &c. 

582 

Roseboom  v.  Van  Vechten 

35,  85 

Robertson  v.  Campbell 

420,  462,  466 

Ross 

V.  Barker 

334 

Robertson 

49,  316 

Durham 

601 

TABLE  OF  CASES  CITED  IN  YOL.  ON]^. 


Iv 


Ross  V.  Garrison 

588 

Sampson  v.  Buraside 

222,  225 

Gill 

271 

Grimes 

236 

Haines 

438 

Sampson 

323 

Hamilton 

126 

Sanbord  v.  French 

88 

Hegeman 

360 

Sanborn  v.  Woodman  -"^ 

381 

Overton 

255 

Sandback  v.  Quigley 

154 

Ross 

6C 

,  161 

Sanders  v.  Benson 

185 

Tremain 

378 

Morrison 

357 

Rowan  v.  Lytle 

288 

Reed 

408 

Rowe  V.  Grenfel 

9 

Richards 

403 

Johnson 

154 

Sanders 

116,  136 

Powers 

157 

Sanderson  v.  Walker 

353 

Young 

443 

Sandon  v.  Hooper 

412,  427 

Rowland  v.  Rowland 

588 

Sands  v.  Champlin 

365 

Rowntree  v.  Jacob 

492 

Sanford  v.  Wheeler 

422 

Rowton  V.  Rowton 

115 

Sarah  v.  Desilver 

39,  40 

Roy  V  Garnett 

655 

,  659 

Sargcant  v.  Roberts 

159 

Rubey  v.  Barnett 

623 

Sargent  v.  M'Farland 

44,  47 

Ruby  V.  Abyssinian 

407 

,  426 

Sarles  v.  Sarlea                     60, 

202,  265,  272 

Ruckman  v.  Astor 

237,  426 

,  483 

Saunders 

265 

Ruffey  V.  Henderson 

225 

Saunders  v.  Frost 

419 

Runlet  V.  Otis 

396 

M'Lin 

11 

Rundale  v.  Eeley 

647 

Saxton  V.  Hunt 

43 

Rung  V.  Shoneberg 

48 

Say  V.  Jones 

304 

Russell  V.  Blake 

427 

Sayer  v.  Wisner 

153 

Clark 

340 

Scawin  v.  Scawin 

323 

Dudlye 

465 

Schenck  v.  Ellingwood 

468 

Elden 

634 

Schermerhorn  v.  Buell 

262 

Gee 

113 

155 

Schley  v.  Lyon 

301 

Hamilton 

473 

School,  &c.  V.  Dunklcberger 

334 

Lewis 

30-7 

332 

Schryver  v.  Teller 

437,  442 

Richards 

6 

Scituate  v.  Hanover 

308 

Russell 

ioo 

490 

Scott  V.  Crawford 

147 

Southard 

400 

Davis 

348 

Stenton 

565 

Evans    ■ 

423 

Temple 

30 

Fields 

397 

Russell,  &c. 

494 

Hancock 

160 

Rutgers  v.  Hunter 

213 

Hastings 

338 

Rutherford  v.  Green 

30 

Hawsman 

184,  244 

Reed 

123 

Lenox 

267 

Rutledge  v.  Smith 

308 

M'Farland 

93,  480 

Rutlege  V.  "Walton 

229 

Scott 

150,  158 

Ruttra  V.  Tyler 

617 

Scripture  v.  Johnson 

460 

Ryall  V.  Rolle 

492 

Scroop  V.  Scroop 

325 

Ryan  v.  Shilloek 

240 

Second,  &c.  v.  Woodbury 

419 

RycroCt  v.  Christy 

301 

Sedman  v.  Ingraham 

140 

Ryerss  v.  Farwell 

236 

Seider  v.  Seider 
Sellers  v.  Hays 
Sellicke  v.  Sellicke 
Senior  v.  Armitage 

141 
47 

175 
15 

S 

Sevier  v.  Greenway 
Sewall  V.  Lee 
Seward  v.  Jackson 

402 
118 
312 

Sabin  v.  Stickney 

483 

Seymour  v.  M'Donald 

370 

Sacket  v.  "Wheaton 

1,  2 

Seymour's  case 

56,  59 

Sackott  V.  Sackott 

'' 

268 

Seys  V.  Price 

166 

Safford  V.  Safiford 

104 

Shackleford  v.  Smith 

43,  284 

Baffin's  case 

179 

Stockton 

478 

Sahl  V.  Wright 

232 

Shapland  v.  Smith 

302 

Salisbury  v.  Bigelow 

341, 

349 

Shapley  v.  Forwood 

33 

Hale 

213 

Rangeley 

480 

Sallade  v.  James 

16 

Sharp  V.  Carl  lie 

181 

Salle  V.  Primm 

73 

Kelley 

216 

Salmon  v.  Clagett 

69,  408, 

479 

Key 

239 

Mathews 

251, 

257 

Pettit 

145 

Salter  v.  Boteler 

247 

Sliarpe  v.  Kelly 

46 

Saltmarsh  v.  Beene 

348 

Sliattuck  V.  Gragg 

112,  159 

Samme's  case 

296 

Siliaw  V.  Beveridge 

4 

Iv 


TABLE  OF  GASES  CITED  IN  YOL.  ONE. 


Sliaw  V.  Boyd 

M'Nish 
Shaw 
White 
Woodby 
Shcafe  v.  O'Niel 
Shean  v.  "Withers 
Sheffield  v.  Collier 
Shelby  v.  Shelby 
Sheldon  V.  Purple 
Shelley's  case 
Shelton  v.  Atkins 
Carroll 
Codman 
Deering 
Hamptou 
Shelton 
Shepard  v.  Adams 

Philbrick 
Pratt 
Shepard 
Spaulding 
Sheperd  v.  M'Evers 
Shepperson  v.  Shepperson 
Slierburne  v.  Jones 
Sherman  v.  Abbott 
Gassett 
Sherrill  v.  Shurford 
Sherwood  v.  Vaudenburg 
Shields  v.  Batts 
Shirkey  v.  Warner 
Shirras  v.  Caig 
Shirtz  V.  Shirtz 
Shively  V.  Wagner 
Shoemaker  v.  Smith 

Walker 
Shoher  v.  Hawser 
Shotwell  V  Sedan 
Shouffler  v.  Coover 
Shrepnel  v.  Vernon 
Shrewsbury 

Slirewsbury  v.  Shrewsbury 
Shunks,  &c. 

Shurtliffu  Witherspoon 
Shurtz  V.  Thomas 
Shute  V.  Harder 
Shuttleworth  v.  Lanrick 
Sidmouth  v.  Sidmouth 
Sidney  v.  Sidney 
Siglar  V.  Malone 

Van  Riper 
Sigourney  v.  Eaton 

Stockwell 
Silliok  V.  Booth 
Silvester  v.  Jarman 
Wilson 
Simmons  v.  Gooding 
Simonds  v.  Brown 

Simonds 
Simpson 

V.  Ash  worth 
Bowden 
Clayton 
Downing 
Hawkins 
Kelso 
Seavey 


143 

SiTns  V. 

Helling 

490 

478 

Sims  V. 

Humphrey 

279 

66 

Singleton  v.  Gayle 

493 

115 

Singleton 

141,  160 

467 

Sisson  I 

.  Seabury 

527,  643 

144,  148 

8iter  v. 

M'Clanachan 

32,  304 

278 

Skeats 

V.  Skeats 

323 

226 

Skeel  V 

Spraker 

442,  451 

336 

Skinner  v.  Brewer 

480 

365 

Cox 

392 

293 

Skirvin 

gv.  Neufville 

449 

481 

Slade  V 

Van  Vechten 

348 

141 

Slainford  v.  FuUerton 

5^4 

180 

Slaughter  v.  Foust 

431,  478 

127 

Slaymaker  v.  St.  John 

311 

441 

Slice  V. 

Derrick 

50 

17 

Sloan  V 

.  Whitman 

146 

438 

Slocum 

V.  Allen 

4  60 

16,  407 

Catlin 

445,  460 

462 

Slocum 

30 

421,  437 

Smack 

V.  Duncan 

478 

25,  183 

Small  V 

.  Proctor 

49 

355 

Smeath 

man  v.  Bray 

478 

88 

Smiley 

V.  Smilev 

116 

282 

Wrigh't 

116,  120 

472 

Smith 

V.  Atkins 

229 

466 

Baldwin 

133 

347 

Benson 

6,8 

106,  149 

Berry 

629 

139,  152 

Boone 

285 

478 

Burtis 

49 

422 

Follansbee 

268 

114 

Goodwin 

408 

182 

Hilliard 

624 

314 

Hardy 

126 

103 

Howell 

299 

301 

Kelly 

419,  431 

134 

Lane 

309 

156 

Manning 

418,  485 

328 

Marrable 

210 

282 

Miner 

183 

59,  68 

Mofifat 

285 

346,  347 

Moore 

405,  408 

347 

Niles 

198 

89,  123 

Parker 

569 

332 

Parkhurst 

517 

419 

Patton 

324 

323 

Paysenger 

108 

82 

Paythrep 

92 

219 

People's,  &c. 

398 

139 

Poyas 

266 

461 

Ramsey 

336 

477 

Saekett 

312 

74 

Sanger 

51 

413,  430 

Saratoga 

246 

302,  655 

Shackleford 

70 

81 

Shepard 

250,  251,410 

435 

Simons 

224 

378 

Smith            100,  135,  141,  145,  154, 

140 

157 

31,  634 

Tarlton 

578 

262 

Taylor 

406,  409 

186,  213 

Tirman 

11 

47 

Warner 

547 

250 

Wells 

303 

31 

Smitheal  v.  Gray 

307 

599 

Smoot 

V.  Lecatt 

77,  82 

TABLE  OF  CASES  CITED  IN  VOL.  ONE. 


Ivii 


Snales  v.  Dale 
Sneed  v.  Atherton 

Jenkins 
Sneed  v.  "Ward 
Snelliiig  V.  Utterback 
Snow  V.  Cutler 
Snowdon  v.  M'Kinney 
Sn3'der  v.  Snyder 
Soliier  c.  Williams 
Solomon  v.  Wilson 
Soudars  v.  Van  Sickel 
Souley  V.  Clockmakers 
South  0.  Allen 
South,  &c.  V.  Blakerslee 
Southard  v.  Parker 
Wilson 
Southcot  V.  Stowel 
Southern  v.  Bellasis 
Mendum 
Southgate  v.  Taylor 
Sowers  v.  Vie 
Spader  v.  Lawler 
Spalding  v.  Shalmer, 
Spangler  v.  Stanler 
Spann  v.  Jennings 
Sparrier  v.  Kingman 
Sparks  v.  State,  &c. 
Sparrow  v.  Shaw 
Speake  v.  Speake 
Spear  v.  Fuller 

Hubbard 
Speed  V.  Buford 
Spelman  v.  Shook 
Spence  v.  Etter 
Spencer  v.  Burton 
Pearce 
Roper 
Weston 
Sperry  v.  Pond 

Sperry 
Spiller  V.  Spiller 
Spraker  v.  Van  Alstyne 
Spring  V.  Csesar 

Hawes 
Springer  v.  Keyser 
Springle  v.  Shields 
Spurgeon  v.  Collier 
Spurr  V.  Trimble 
Squibb  V.  Wynne 
Squire  v.  Harder 

Warder 
Stabback  v.  Leat 
Stafford  v.  Buckley 

Van  Rensselaer 
Stagg  V.  Beekman 
Stanliope  v.  Stanhope 
Stanley  v.  Hays 

Stanley 
Tuesgood 
Stansbury  v.  Taggart 
Stanton  v.  Hall 
Stanwood  v.  Dunning 
Staples  V.  Emery 

Maurice 
Stapp  V.  Phelps 
Stark  V.  Hunter 

Mercer 


600 

Starr  ».  Ellis 

182,  445 

600 

Jackson 

565 

216 

Pease 

82 

231, 

385 

State  V.  Freeman 

38 

314 

Laval              ^^ 

400 

535 

Lawton 

460 

284 

Nichols 

31 

356 

Page 

193 

66 

Stewart 

280 

403 

Statton  V.  Best 

576 

408 

411 

Stayton  v.  Morris 

236 

357 

Steadman  v.  Hilliard 

42 

304 

Polling 

82 

48 

Stearns  v.  Godfrey 

48,  390 

192 

Palmer 

43,  50 

481 

488 

Stearns 

150 

621 

Stedfast  v.  Newle 

537 

238 

Stedman  v.  Gasset 

408 

432 

Weeks 

G04 

488 

Steed  V.  Cragh 

180 

180 

Steel  V.  Cook 

570 

421 

Steele  v.  Mander 

479 

345 

Steeles  v.  Mast 

202 

115 

117 

Steere  v.  Steere 

309,  312 

306 

Steiger  v.  Hillen 

145 

107 

Stelle  V.  Carroll 

414 

28 

Stephens  v.  Lynn 

244 

638 

Smith 

115,  120 

167 

Stephenson  v.  M'Creary 

97,  107 

384 

Thompson 

311,  312 

470 

Sterling  v.  Penlington 

593 

42 

Sterricker  v.  Dickenson 

529 

505 

Stert  V.  Platel 

526 

508 

Stetson  V.  Gulliver 

395 

200 

'Veazie 

51 

499 

Stevens  t.  Brittredge 

642 

74 

Cooper 

396 

153 

Ely 

321 

370 

Owen 

126 

243 

Smith 

147 

484 

Stevens 

226 

630 

Winship 

69,  623,  630 

542 

Stevenson  v.  Doe 

43 

419 

424 

Richmond 

218 

508 

Stonehill 

508 

141 

Steward  v.  Allen 

460 

398 

Lombe 

8,  20,  28 

73 

Stewart  v.  Brown 

315 

.180 

Chew 

273 

316 

Clark 

68 

316 

Doughty 

13,  14,  227 

403 

Hutchins 

392 

58 

Ives 

492 

496 

Kissam 

302,  304 

357 

M'Afartin 

139 

67 

Roderick 

221 

209 

Stewart 

119 

526 

Stier  V.  Sarget 

244 

212 

Stiles  V.  Cowper 

207 

48 

279 

Stillman  v.  White 

48 

304 

Stinson  v.  Sumner 

126 

105 

106 

Thomaston,  &a 

107 

279 

Stiver  v.  Cauthon 

15T 

661 

Stockman  v.  Whither 

267 

466 

Stockwell  V.  Marks 

25 

130 

Stoddard  v.  Gibbs 

78 

487 

Stoebler  v.  Knice 

688 

Iviii 


TABLE  OF  CASES  CITED  IN  VOL.  ONE. 


Stokes  V.  M'Allister 
M'Kibbin 

Stone  V.  Hulsford 
Knight 
Lincoln 
Patterson 
Stone 
Stony,  &c.  V.  American,  &c. 
Storer  v.  Batson 
Storm  V.  Mann 
Story  V.  Johnson 
Saunders 
Stouffer  V.  Coleman 
Stoughton  V.  Leigh 
Stover  V.  Cora. 
Stowell  V.  Pike 
Strachy  v.  Francis 
Stratton  v.  Best 
Straw  V.  Jones 
Streatfield  v.  Streatfield 
Strong  V.  Bragg 
Hunt 
Skinner 
Stewart 
Waterman 
Willis 
Stuart  V.  Kissam 
Mellish 
Stubbs  V.  Sargon 
Stukeley  v.  Butler 
Stultz  V.  Dickey 
Sturgion  v.  Painter 
Stuyvesant  v.  Davis 
Hall 
Mayor 
Suaren  v.  Punpelly 
Sufett  V.  Shufelt 
Summers  v.  Babb 
Sumner  v.  Babb 
Conant 
HampsoD. 
Partridge 
Stevens 
Sumpter  v.  Cooper 
Surget  V.  Arighi 
Sutliff  V.  Forgey 
Sutton  V.  Edwards 
Rolfe 
Stone 
Temple 
Suydam  v.  Bartle 
Swain  v.  Paine 

Roscoe 
Swan  V.  Wiswall 
Swart  V.  Service 
Swartwout  v.  Burr 
Swayre  v.  Burke 
Sweetapple  v.  Bindon 
Sweezy  v.  Thayer 
Swett  V.  Horn 
Swift  V.  Dean 
Duffield 
Roberts 
Switzer  v.  Skiles 
Sydney  v.  Sydney 
Syme  iT.  Sanders 
Symonds  v.  Cudmore 
Symson  v.  Butcher 


141 

142 

«                     1 

81, 

218 

365 

Tabele  v.  Tabele 

191 

Taffe  V.  Warwick 

410 

Taft  V.  Morse 

191, 

411 

Stephenson 

194 

Tait  V.  Jenkins 

466 

Taitt  V.  Cootzer 

318 

Talbot  V.  Todd 

273 

Tallman  v.  Coffin 

468, 

604 

Wood 

48 

Tamworth  v.  Ferrers 

498 

Tanfield  v.  Rogers 

1, 

116 

Tanner  v.  Elworthy 

31 

Livingston 

410 

Tapley  v.  Smith 

267 

Tappan  v.  Bailey 

661 

Evans 

42 

Tarpley  v.  Poage 

645 

Tasburgh  v.  Echlen 

140 

Tate  V.  Crowson 

597 

Tatem  v.  Tatem 

92 

Taverner 

396 

Taylor 

38 

Taylor  v.  Bailey 

356 

Baldwin 

350 

354 

Bassett 

346 

Broderick 

321 

Bullen 

10 

371 

Cox 

15 

Frobisher 

196 

Gould 

241 

247 

Horde 

421 

James 

364 

King 

357 

Krocher 

483 

Mason 

139 

,  160 

McCrackin 

113 

114 

Morris 

89 

Perry 

578 

Roberts 

81 

Stockdale 

48 

Taylor 

492 

Town  send 

209 

Weld 

108 

Teaffv.  Hewitt 

116 

Teal  V.  Awty 

592 

Teed  v.  Carruthers 

60 

Telford  v.  fiarney 

253 

Telghman 

482 

Tellman  v.  Bower 

147 

Templeraan  v.  Biddle 

658 

Tempest  v.  Rawling 

474 

Tennent  v.  Dewes 

396 

Tenny  v.  Childs 

30 

Teppin  v.  Coson 

334 

Terrett  v.  Taylor 

80 

Terrill  v.  Murray 

33 

Tessier  v.  Wise 

392 

Teulou  V.  Curtis 

218 

Tew  V.  Winterton 

537 

Thacher  v.  Gammon 

583 

Thatcher  v.  Omans 

346 

Thaxter  v.  Williams 

16S 

,  169 

Thayer  v.  Felt 

72 

Mann 

570 

Richards 

207 

Smith 

415 

22 

343,  365 

493 

357 

346,  349 

300,  336,  615 

215 

648 

277 

233 

350 

630,  631 

8 

578 

473,  477 

312 

401 

381,  386 

526 

255 

73,  194 

194 

498,  511,  597 

447 

113,  144 

380 

600 

524 

78,  181 

46 

339 

341 

631 

370 

142 

355 

177 

345 

441 

130 

29 

480 

18,  19,  26 

11 

443 

616 

31 

154 

15 

196 

426 

196 

298 

53 

COO 

273 

392 

169 

467 

302 

507 

460 

392,  433 

415 

480 


TABLE  OF  CASES  CITED  IN  VOL.  ONE. 


lix 


Thelluson  v.  Woodford 

537 

Todd  V.  Beatly 

139 

Thomas  v.  Brinsfield 

336 

Hall 

197 

206 

Brown 

482 

Toll  V.  Hiller 

442 

Cleaves 

466 

Tollemache  v.  Tollemache      • 

276 

Conn  ell 

232,  236 

Tolley  V.  Greene          ^^ 

130 

Hatch               46,  48,  53, 

599,  601 

Tollman  v.  Emerson 

42 

Hayden 

243 

Tomliiison  v.  Dighton 

623 

Howell 

380 

Tompkins  v.  Elliott 

366 

McCormack 

397 

Tooke  V.  Ely th way 

487 

Moody- 

16 

Hardeman 

153 

Phelps 

629 

Tooker  v.  Squier 

194 

Simpson 

150 

Toovey  v.  Bassett 

633 

Thomas 

102 

Torrey  v.  Bank                     348,  421 

442 

483 

Von  Kapfif 

435 

Wallis 

212 

Walker 

312 

Torriano  v.  Young 

282 

Wood 

30,32 

Totten  V.  Stuyvesant 

157 

Thoraaston,  &c.  v.  Stimpson 

467 

Tower's,  &c. 

460 

Thompson  v.  Barber 

594 

Towers  v.  Craig 

64 

Bostick 

597 

Davys 

169 

Boyce 

415 

Towle  V.  Ayer 

47 

Branch 

307 

Townsend  v.  Lawton 

552 

Bright                    366 

384,  388 

Townsend 

149 

163 

Chandler 

436 

Tracey  v.  Talbot 

4 

Cochran 

116 

Tracy  v.  Hereford 

67 

Gibson 

294 

Kilborn 

628 

Hallett 

352 

Trappes  v.  Harter 

20 

Leach 

543 

Trask  v.  Patterson 

86 

McGaw 

136,  137 

White 

423 

Milford 

43 

Travell  v.  Danvers 

386 

Morrow 

113,  114 

Treadwell  v.  Bulkley 

577 

Peebles 

126 

Reddick 

50 

Eenoe 

314 

Treport's  case 

204 

Spinks 

229 

Trevor  v.  Trevor 

644 

645 

Thompson 

14,  17 

Trimble  v.  Trimble 

97 

Thornbrough  v.  Baker 

430 

Trimmer  v.  Heagg 

87 

Thorudike  v.  Spear 

107 

Heaggy 

89 

Thorne  v.  Thorne 

405 

Troth  V.  Hunt 

508 

Thorneycroft  v.  Crockett 

427 

Trott  V.  Dawson 

347 

Thornhill  v.  Gilmer 

460 

Trotter  v.  Blocker 

301 

Thornton  v.  Ellis 

29 

Trudear  v.  M'Vicar 

460 

Foss 

52 

True  V.  Ramsey 

98 

Knox 

494 

Trull  V.  Full,  r 

21 

Thornton 

587 

Owen 

400 

Thorp  V.  McCullum 

348,  352 

Skinner 

395 

400 

Thorp 

366 

Trulock  V.  Robey 

424 

426 

Thorpe  v.  Gardside 

490 

Truscott  V.  King 

421 

Tliunder  v.  Belcher 

409 

Trustees,  &c.  v.  Bigelow 

4 

Thurston  v.  Dickinson 

67,  597 

Clough 

186 

Tice  V.  Anuin 

416 

Jaques 

348 

Tiernan  v.  Roland 

62 

Spencer 

208 

Tilburgh  v.  Barbut 

636 

Tubb  V.  Williams 

48 

Tilford  V.  James 

437 

Tubbs  V.  Lynch 

586 

Tilghman  v.  Cruson 

565 

Tucker  v.  Boswell 

67 

Little 

220 

Bufifum                427,  428, 

429, 

465 

Tillinghast  v.  Fry 

415,  420 

Newman 

566 

Tilly  V.  Tiller 

302 

St.  Clement's  Church 

361 

Tilton  V.  Palmer 

609 

Tucker                        359, 

360, 

362 

Timewell  v.  Perkins 

622 

Tufnell  V.  Page 

626 

Tindall  v.  Den 

219 

Tuite  V.  Miller 

139 

Tinney  v.  Tinney 

165,  166 

Tunstall 

356 

Tipping  V.  Pigot 

550 

Turner 

339 

Tipping's  case 

641 

Turners.  Bouchell 

348 

Tiiley  v.  Davis 

419 

Buck 

271 

Titus  V.  Neilson 

415 

Calvert 

467 

Tobey  v.  Reed 

16,  407 

Camerons 

409 

Webster 

565 

Doe 

" 

282 

Tobias  v.  Frances 

22 

Johnson 

58, 

370 

Tod  V.  Baylor 

114,  145 

Maule 

356 

Ix 


TABLE  OF  OASES  OITED  IN  VOL.  ONE. 


Turner  v.  Patterson 

Petigrew 

Tebbult 
Turney  v.  Sturges 
Tuttle  V.  Bean 

Brown 

Wilson 
Tweedale  v.  Coventry 
Twelves  v.  "Williams 
Twisden  v.  Lock 
Twort  V.  Twort 
Tyler  v.  Hammond 

Lake 

Smith 

Webb 
Tylers,  &c. 
Tyree  v.  Williams 
Tyson  v.  Harrington 

Hollingsworth 

Postlethwaite 

Riekard 


U 


Underhill  v.  Jackson 
Union  v.  Emerson 
Edwards 
Upham  V.  Bradley 
Yarney 
Usher  v.  E,ichardson 
Uvedall  V.  Uvedall 


527,  556,  643 
339 
366 
159 
284 
448 
153 
569 
498 
664 
599 

52 
304 

42 
490 
355 

91 

102 

16,  347 

94 
466 


609 
28 
422 
609 
302 
127 
520 


Vail  V.  Vail  359 

Vanaisdall  v.  Fauntleroy  77,  86 

Van  Arsdale  v.  Drake  609 

Vance  v.  Campbell  129 

Johnson  219 

Yance  163,  165 

Vanderheyden  v.  Crandall  295,  643 

Mallory  92 

Vanderplant  v.  King  664,  666 

Vanderpoel  v.  Van  Allen  19 

Vanderwerker  v.  Vanderwerker       609,  622, 

626,  631 

Van  Deusen  v.  Frink  441,  448,  465 

Vandevar  v.  Baker  123 

Van  Duyne  v.  Thayer  417,  430,  489 

Vanduzer  v.  Yanduzer  82 

Van  Dyne  u.  Van  Ness  508,510 

Vane  v.  Ld.  Barnard  277 

Van  Eps  v.  Van  Eps  328 

Van  Hook  v.  Somerville  438 

Throckmorten  483 

Van  Home  v.  Dorvance  377,  380 

Van  Hyke  v.  Sbelden  475 

Van  Meter  v.  McFadden  492 

Van  Ness  v.  Hyatt  415 

Pacard  19,  20,  21,  23 

Vanneter  v.  Vanneter  421 

Van  Pelt  v.  McGrew  408 

Van  Rensselaer  v.  Akin  355 

Bradley  258 

Gallup  187,  242,  258 

Hayes  238 

Jewitt  227,  242,  243 


Van  Rensselear  v.  Jones 

Kearney 
Pouch er 
Snyder 

Van  Rbyn  v.  Vincent 

Van  Riper  v.  Bendam 
Williams 

Vansce  v.  Russell 

Van  Valkenburgh  v.  Peyton 

Yan  Yechten  v.  Van  Yechten 

Van  Yronker  v.  Eastman  415,  417, 

Yan  Waggener  v.  McEweu 
Yan  Wycic  v.  Alliger 
Yarick  v.  Edwards 
Vaughn  v.  Bacon 
Veazey  v.  Whitehouse 
Vecht  V.  Brownell 
Venables  v.  Morris 
Verner  v.  Winstanley 
Vernon  v.  Bethell  i, 

Smith 

Vernon 
Vernon's  Case 
Yick  V.  Edwards 
Yickers  v.  Stone 
Yiles  V.  Moulton 
Villers  v.  Handley 
Yincent  v.  Spooner 
Yiner  v.  Vaughan 
Vischer  v.  Conant 
Yiscount  V.  Morris 
Vizard  V.  Longdale 
Voorhees  v.  Freeman 

The  Presbyterian,  &c. 
Yredenbergh  v.  Morris 


W 


258 

62 

62 

242 

336 

613 

468 

19 

15 

359 

420  428, 
484 
268 

261,  408 

336 

46,  599 

365 

187,  483 

302,  642 
402 
398 
435 
258 

164,  165 
555 
526 
446 
568 
173 
265 
144 
413 
165 
26,  27 

4,  5,  307 
180 


Waddle  v.  Canton 

448 

Waddington  v.  Bristow 

11 

Wade  V.  Green 

470 

Howard 

440, 

472 

Merwin 

461 

Paget 

333 

Wade's  case 

392 

Wadleigh  v.  Glines 

90 

Wadrop  v.  Wall 

479 

Wafee  v.  Mocato 

382 

Wager  v.  Wager 

529 

559 

Waggoner  v.  Hastings 

43 

Waggoner 

357 

Wainright  v.  Warding 

65 

Wainwright  v.  Dove 

605 

Ramsden 

209 

Wait,  &c. 

228 

Wait  V.  Day 

'324 

Wait 

324 

Wakeman  v.  Banks 

408 

410 

Walcop  V.  McKinney 

406 

Waldeu  v.  Bodley 

216 

Waldo  V.  Hall 

185 

188 

Walker  v.  Anskaly 

510 

Brunjard 

354 

Fetts 

200 

Hallett 
Hatten 

482 

483 
208 

TABLE  OF  CASES  CITED  IN  VOL.  ONE. 


Ixi 


Walker  v.  Locko 

318 

Watson  V.  Dickens 

397,  421 

Physick 

232 

Faxon 

667,  669 

Scliuyler 

114 

Gregg 

699 

Sherman 

20 

Griff 

46 

Snedeher 

421 

Hill          _-^ 

601 

"Walker 

165, 

396 

Le  Bow 

312 

Walking  v.  Holman 

279 

Spence 

498 

Wall  V.  Hill 

107 

Willard 

494 

Williamson 

38 

Watts  V.  Ball 

328 

Wallace  v.  Costen 

92 

Claudy 

61,  660 

Hall 

138 

Coffin 

252 

Maxwell 

50 

Leo 

576 

Waller  v.  Tate 

416, 

431 

Symes 

419 

Wallis  V.  Harrison 

180 

Wadell 

87 

Walling  V.  Acken 

421 

Way  V.  Patty 

493 

Wallingford  v.  Hearl 

568 

Wano  V.  Middleton 

303 

Walsingliam's  case 

59 

Weale  v.  Lower 

556 

Walter  v.  Bould 

60 

Wease  v.  Pierce 

468,  471 

Sleeper 

508 

Weatherford  v.  Weatherford 

97 

Walters  v.  Jordan 

102 

Webb  V.  Dixon 

201 

Walthen  v.  Crofts 

206 

Evans 

183 

Walton  V.  Cronly 

396 

Flanders 

459 

Coulson 

536 

Hearing 

525 

Walton  V.  Withington 

426 

Holmes 

143 

Walton's 

357 

Rice 

396 

Wamburzee  v.  Kennedy 

300 

322 

Sugar 

550 

Wampler  v.  Shipley 

338 

Sturtevant 

43 

Wandell 

230 

Townsend 

111 

Wansbrough  v.  Matin 

19 

Webber  v.  Mallett 

594 

Ward  V.  Amory 

87 

Shearman 

239,  281,  588 

Bull 

244 

256 

Webber 

430 

Fuller 

'  41 

Webster  v.  Gilman 

41,  181,  548 

Jones 

660 

French 

340 

Malthius 

358 

Wedderburn  v.  Wedderburn 

336 

Smith  V.  Wandell 

352 

Weed  V.  Beebe 

472,  478 

Warden  «.  Adams 

431 

432 

Weedall  v.  New  Hamp. 

481 

Ware  v.  Polbill 

59 

Weeks  v.  Hoas 

327 

Waring  v.  Darrell 

347 

Patten 

130 

King 

202 

Weeks 

600 

Page 

282 

Weeton  v.  Woodcock 

24 

Ward 

454 

Wegg  V.  Villers 

545 

Warburton  v.  Lanman 

435 

Weidman  v.  Marsh 

617 

Warner  v.  Hitchens 

211 

Weir  V.  Tate 

102,  103 

Warren  v.  Child 

460 

Weiglit  V,  Rose 

31 

Davis 

599 

Welch  V.  Allen 

618 

Leland 

10 

220 

Weld  V.  Peters 

618 

Warwick  V.  Bruce 

12 

Williams 

634 

Wartenly  v.  Moran 

242 

380 

Welland  v.  Gray 

421 

Washburn  v.  Goodwin 

416 

Wellburn  v.  Williams 

493 

Sproat 

5 

Welles  V.  Cowles 

29,  205 

Titus 

396 

Hynes 

51 

Washburn 

382 

Wellock  V.  Hammond 

670 

Washington  v.  Abraham 

32 

Wells  V.  Beal 

147, 153 

Conrad 

219 

600 

Bannister 

7 

Wasson  v.  English 

350 

Chapman 

600 

Waterman  v.  Soper 

10 

Martin 

119 

Waters  v.  Baily 

350 

Morse 

418,  423 

Gorch 

113 

Smith 

382 

Mvnn 

395 

Thompson 

75,  82 

Randall 

393,  398 

,  400 

Wendell  v.  Craindeflt 

82,  518 

Stuart 

460 

N.  H.  &c. 

386 

Waters 

354 

Van  Rensselaer 

470 

Wathen  v.  English 

602 

Wenton  v.  Cornish 

4 

Walhwell  v.  Howells 

24 

Wentworth  v.  Wentworth 

159 

Watrous  v.  Spencer 

482 

Wentz  V.  Dehaven 

439 

Wells 

492 

Fincher 

6 

Willard 

494 

West  V.  Blakesley 

23 

Watson  V.  Bonney 

92 

Chamberlain 

474 

ixu 


TABLE  OF  CASES  CITED  IN  YOL.  ONE. 


West  V.  Erissey 

646 

Lanier 

52 

&c.  V.  Chester 

448 

Weston berger  v.  Keist 

619 

Western,  &c.  v.  Kyle 

385,  388 

Westlake  v.  DeGraves 

244 

Weslon  V.  Foster 

528,   606 

Hunt 

54 

Woodcock 

24 

Wetherby  v.  Foster 

26 

Whaler  v.  Brau'jomb 

409 

Story 

154 

Wliarf  «.  Huwell 

397 

Wharton  v.  Gresham 

637 

Shaw 

31 

Whartoa 

60 

Whately  v.  Kemp 

645 

Wlieale  v.  Power 

222 

Wliealland  v.  Dodge 

636 

Wheatley  v.  Best 

103 

Wheaton  v.  Andress 

626 

Wheelan  v.  Hill 

5U 

Wheeler  v.  I^omell 

222 

Earle 

242 

Hill 

186 

Hotchkiss 

82 

Montefiore 

28,  293 

Smith 

571 

Stone 

52 

Thorogood 

179 

Walker 

383 

Wood 

281,  287 

Wheelwright  v.  Freeman 

477 

Loomer 

428 

Whelpdale  v.  Cookson 

349 

Whetstone  v.  Bury 

302 

Whiehcote  v.  Fox 

371 

Lawrence 

348,  350 

Whipple  D.  Foot 

17 

Whitaker  v.  Sumner 

460 

Williams 

470 

Whitaker 

180 

Whitbeck  v.  Cooke 

90 

Edgar 

478 

Skinner 

211 

Whitfield  V.  Bewit 

265,  274 

Paussitt 

558 

Taylor 

168 

Whithead's  case 

490 

Whithed  v  Mallory 

119 

White  V.  Arndt 

19,  21,  25 

Bailey 

285 

Baily 

216 

Bond 

460 

Brown 

427 

Carpenter 

312,  315 

Carter 

655 

Clark 

157 

Collins 

652 

Cutler 

111 

Hillacro 

419 

Knapp 

446 

Story 

158,  159 

Stover 

491 

Todd 

441 

Wagner 

268,  271 

Willis 

111 

White 

336 

White  V.  Woodberry 

White's  Appeal 

Whiting  V.  Brastow 
Stephens 
Whiting 

Whitlock  V.  Duffield 
Norton 

Whitmarsh  v.  Cutting 
Walker 

Whittemore  v.  Moore 

Whitney  v.  Allaire 
Gordon 
Holmes 
Lovett 
Meyers 
Spencer 
Swett 
Whitney 

Whitten  v.  Whitten 

Wliiitenie  v.  Lamb 

Wliitlicke  v.  Kane 

Whittier  v.  Dow 

Whittington  v.  Bright 

Whit  worth  v.  Gaugain 

Wickes  V.  Clarke 

Wicker  ly  v.  Wickerly 

Wiekersham  v.  Irwin 

Wickham  v.  Hawker 

Wickliffe  v.  Clery 
Ensor 

Widlake  v.  Harding 

Wigg  V.  Wigg 

Wight  V.  Shaw 

Wilbur  V.  Wilbur 

Wilcox  V.  Hubard 
Morris 
EandaU 
Woods 

Wilcoxen  v.  Bowles 

Wild  V.  Wells 

Wild's  case 

Wilder  v.  Smith 

Wiles  V.  Gibson 

Wiley  V.  Smith 

Wilford  V.  Rose 

Wilhelm  v.  Tolmer 

Wilkes  V.  Lion 

Wilkerson  v.  Daniels 

Wilkins  v.  French 

Washbiuder 

Whiting 

Wilkias 

Wilkinson  v.  Hall 

Parish 
Spearman 

Will  V.  Peters 

Willard  v.  Fiske 
Haryey 
Henry 
Tellman 
Tulman 

Willet  V.  Beaty 

Willett  v.Winnell 

Willington  v.  Willingtou 
Gale 

Willink  V.  Vanderveer 

Willion  V.  Graham 
Berkley 


643 
28 
22 
88 
59 
218 
94 
14 
11,  23,  222 
214 
178,  250 
284 
222 
280 
183 
369 
284 
517,  569 
318,  326 
65 
395,  396 
477 
600 
490 
82 
168 
186 
222 
8 
52 
624 
384 
644 
597 
122 
398 
120 
201 
227 
147 
636 
494 
232 
634 
271 
331 
519 
478 
405,  417,  418,  431 
12 
647- 
478 
406 
611 
675 
285 
485 
416,  436,  384 
384,  386 
191,  192 
256 
160 
389 
56 
405 
316 
495 
512,  536 


TABLE  OP  CASKS  CITED  IN  VOL.  OXE. 


Willis  V.  Astor 
Backer 
Swett 
Willis 
Williston  V.  "White  • 
Willougliby  V.  Jenks 
Wills  V.  Talmer 
Wilton  V.  Dunn 
Williams  v.  Bosanquet 
Burbeck 
Caston 
Chitty 
Cowden     • 

Duke  of  Bolton 
Fullerton 
Ilalbut 

Hollingsworth 
Kelsey 
Little 
Morgan 
Morris 
Owen 
Pope 
Potter 
Powell 
Eeed 
Roberts 
Sorrell 
Stevens 
Stratton 
Tearney 
Thurlow 
Williams 
Woods 
Williamson  v.  Berry 

Cliamplin 
Curtis 
Pield 
Leaber 
Richardson 
Wilson  V.  Anderson 
Bailer 
Chalfant 
Cheslin 
Collishan 
Douglass 
Hall 
Leonard 
Mason 
Oatnian 
Smith 
Troup 
Wilson 
Wilton  V.  Dunn 
Winbush  v.  Tailbois 
Winder  v.  Diffenderffer 
Windham  v.  Portland 
Windsor  v.  Gover 
Winn  V.  (,'ole 
Winuiiigton  v.  Foley 
Winningtori's  Case 
Winslow  V.  Merchants,  &c. 
Goodwin 
Rand 
Winter  v  Lord  Anson 
Winter's  case 
Wisecot's  case 


312, 


I  Withers  v.  Isam 
Withers  v.  Morrell 
Wolcott  V.  Sullivan 
Wolfe  V.  Bate 

Dowell  '  - 

Van  Nostrand 
Wollaston  v.  Haskwell 
Womble  v.  Battle 
Wood  V.  Baren 

Chambers 
Gaynon 
Hewitt 
Hubbell 
Jones 
Keyes 
Mann 
Partridge 
Reignold 
Shurley 
Southhampton 
Turner 
White 
Williams 
Wood  131, 

Wood's  case 
Wooden  v.  Butler 

Haviland 
Woodgatev.  Unwin 
Woodhouse  v.  Haskins 
Woodliflf  V.  Drury 
Woodman  v.  Blake 

Morrell 
Woodroffe  v.  Daniel 
WoodruiTt'.  Brown 

-     Robb 
Woods  V.  Bailey 
Banks 
^  Hutitingford 

Woods 
Woodson  V.  Haviland 
Perkins 
Woodward  v.  Brown 
Seely 

Woodward 
Woolridge  v.  Wilkins 
Woorall  V.  Morgan 
Woorall 
Wooton  V,  Kdwin 
Worsley  v.  Stewart 
Worth  ington  v.  Lee 

Middleton 
Worthy  v.  Johnson 
Wotten  V.  Hele 
Wright  V.  Atkins 
Barrett 
Bates 
Cartwright 
Dow  ley 
Holfbrd 
Jennings 
Marsh 
Moore 
Pearson 
Rose 
Russel 
Trevesant 
Tukey 
Woodland 


Ixiii 

53 
468 
411 
342 
439 
515,  Ll9 
185,  187,  23],  233 
492 
C37 
219,  220 
2G6 
19 
178 
413 
30 
478 
239,  250 
546 
1G4,  168 
377 
216 
338 
478 
302,  336,  338,  361 
556 
185 
468 
576' 
550,  551,  552 
298,  541 
382 
325 
56,  60 
"44 
395 
494 
50 
454 
73,  108 
515 
420 
216 
224,  225 
493 
113 
659 
62 
235 
266,  272 
479 
126 
352 
206 
628 
10 
393,  398,  402 
175 
617 
668 
145 
616 
279 
648.  649 
428,  450 
626 
194 
480 
499 


Ixiv 


TABLE  OP  CASES  CITED  IN  VOL.  ONE. 


"Wright  V.  Wright 

108, 

558 

Yelverton  v.  Yelverton 

295 

Wrixtoa  v.  Cotter 

400 

York  V.  Stone 

583 

Wroth  V.  Greenwood 

302 

Young  V.  Chambers 

509 

Wyatt  V.  Brown 

121 

Dake 

286 

Sadler 

626 

Poster 

96 

Wycoff  V.  Longhead 

467 

Jones 

13 

Wynne  v.  Alston 

495 

Lyman 

503,  509 

Wynne 

180 

Morton 
Peachy 
Wood 

212 
396 
494 

Y 

Yundt's  Appeal 

304 

Tates  V.  Ashton 

397 

Z 

Paddock 

146 

150 

Yates 

360 

361 

Zeeter  v.  Bocoman 

409 

Yearworth  v.  Peirce 

18 

Zyle  V  Ducomb 

508 

Yelverton  v.  Shelden 

437 

Zylstra  v.  Ruth 

488 

THE 


AMERICAN  LAW  OF  REAL  PROPERTY. 


CHAPTER  I. 

REAL  PROPERTY  IN  GENERAL. 


1.4.  Lands,  tenements  and  hereditaments. 

2.  Heir-looms. 

6.  Water. 

7.  Real  estate — definition. 

8.  Land — what  it  includes. 

12.  Chamber  of  a  house. 

13.  Pews. 

14.  Building  on  another's  land. 
29.  Mines. 


30.  Trees. 

36.  Growing  crops. 

41.  Emblements. 

71.  Sea- weed. 

72.  Wreck,  &a 

73.  Manure. 

74.  Fixtures. 

107.  Shares  in  corporations. 

110.  Money  to  be  laid  out  in  land. 


1.  Real  property,  in  the  technical  phraseology  of  the  law,  consists 
of  hmis,  tenements  and  hereditaments.  The  first  of  these  terms  is  the  least 
comprehensive,  including  only  corporeal  or  tangible  property,  while  the 
two  last  embrace  also  incorporeal  property.  Thus  a  rent  or  right  of 
common,  though  not  land^  is  still  real  property,  being  both  a  tenement 
and  hereditamenL{d)  The  term  hereditament,  which  is  the  most  com- 
prehensive of  the  three,  besides  including  the  others,  applies  also  even 
to  articles  of  personal  property,  provided  they  are  such  as  pass  to  the 
heir  and  not  to  the  executor;  as,  for  instance,  an  annuity,  limited  to" 
heirs,  or  the  condition  in  a  bond.  So  the  visitatorial  "power,  vested  in  the 
visiters  of  a  corporation,  has  been  termed  an  hereditament.  So  also  a 
land-warrant.  So  the  right  of  permanently  overflowing  the  land  of 
another  by  a  mill-dam  below  it,  and  a  corporate  right  to  select  and 
acquire  laud  for  a  corporate  purpose.     So  a  ferry.  (1) 


(1)  Co.  Litt.  6  a;  1  Cruise,  37;  2  Black. 
17  ;  Mitchell  v.  Warner,  5  Conn.  518 ;  Canal, 
&c.  V.  Railroad,  kc,  4  Gill  &  J.  1  ;  Allen  v. 
M'Keen,  1  Sumn.  301 ;    Dunlap  v.  Gibbs,  4 


Yerg.  94;  Harris  v.  Miller,  1  Meigs,  158; 
Sacket  v.  Wheaton,  17  Pick.  103;  Bowman 
V.  Wathen,  2  McL.  376;  Radburn  v.  Jervis, 
3  Beav.  450. 


(a)  A  public  tvay,  gays  Mr.  Justice  Cowen,  if  not  an  hereditament  in  every  sense,  is  cer- 
tainly a  quasi  hereditament.  Willoughby  v.  Jenks,  20  Wend.  99.  A  road  was  laid  out  over 
land  which  had  been  taken  by  a  turnpike  company,  improved  by  them,  and  afterwards  sold 
to  an  individual.  Held,  the  old  way  of  the  company  was  not  land,  within  the  meaning  of 
the  Road  Acts  and  the  Constitution  of  New  Jersey.     In  the  Matter,  &c.,  2  N.  J.,  293. 

A  water  company,  which  has  laid  pipes  in  a  land-tax  division,  under  a  statutory  power, 
but  owns  no  land  within  the  division,  is  not  assessable  there  to  the  land-tax ;  the  right  in 
question  being  in  the  nature  of  an  easement,  and  not  land  or  hereditament.  Chelsea,  &c.  v. 
Bowley,  7  Eng.  Law  and  Eq.,  376. 

The  grant  of  a  whole  mineral  stratum,  under  the  soil  of  the  grantor,  ia  a  grant  of  a  real 
hereditament.     Stoughton  v.  Leigh,  1  Taun.  402. 


REAL  PROPERTY  IN  GENERAL. 


[CHAP.  L 


2.  In  England,  the  most  frequent  example  of  a  personal  heredita- 
ment is  an  heir-loom.  Heir-looms  are  certain  chattels  that  accompany 
the  inheritance ;  such  as  deer  in  a  park,  doves  in  a  dove-house,  or  the 
ancient  jewels  of  the  crown.  So,  an  ancient  horn,  which  had  gone  im- 
memorially  with  the  estate,  and  been  delivered  to  the  plaintiff's  ances- 
tors to  hold  their  land  by.(l)  It  has  been  suggested,  that  nothing  is 
strictly  an  heir-loom,  which  passes  by  the  general  law,  and  not  by  spe- 
cial custom.  The  instances  mentioned  are  said  to  be  merely  in  the 
nature  of  heir-looms.(2) 

3.  In  the  United  States,  heir-looms,  as  such,  are  for  the  most  part 
unknown.  They  are,  however,  recognised  by  the  statute  law  of  Mary- 
land,(3)  and  excepted  from  the  general  disposition  of  personal  prop- 
erty upon  the  death  of  the  owner.  And  the  princijile  applies  to  title- 
deeds,{a)  which  Lord  Coke  calls  "the  sinews  of  the  inheritance;"  the 
chests  and  boxes  containing  them  ;  and  to  the  keys  of  a  house — all  of 
•which  undoubtedly  pass  with  the  land  to  which  they  pertain.  So  also, 
in  England,  to  family  pictures.(4)  In  those  States  where  slavery  is 
known,  it  would  seem  that  the  transmission  of  slaves  is  founded  upon 
a  somewhat  similar  principle.  In  Virginia,  Missouri  and  Maryland, 
slaves  are  either  declared  by  statute  to  be  personal  estate,  or  treated  as 
such,  in  reference  to  devises.(5)  So,  to  a  great  extent,  in  Mississippi 
and  Kentucky. (6)  But  whether  personal  or  real,  technically  speak- 
ing, it  is  the  almost  universal  practice  to  treat  them,  in  many  important 
particulars,  such  as  dower,  or  the  formalities  of  transfer  by  deed  or 
execution,  like  real  property ;  or  at  least  to  place  them  on  an  inter- 
mediate ground  between  lands  and  chattels. 

4.  "Lands,  tenements(6)  and  hereditaments,"  is  the  phrase  commonly 
used  in  the  American  statute  law,  to  denote  real  estate.  But  in  Dela- 
ware, Massachusetts,  Maine  and  New  Hampshire,  it  is  provided,  that 
the  words  "  land"  or  "  lands  "  and  "  real  estate,"  when  used  in  a  statute, 
shall  include  "lands,  tenements  and  hereditaments,  and  all  rights 
thereto  and  interests  therein,"  unless  the  Legislature  manifestly  intend 
•otherwise.  So  in  New  York,  with  the  terms  "real  property."  And 
in  Missouri,  real  estate,  when  spoken  of  in  the  statute  concerning  exe- 
cutions, is  declared  to  mean  lands,  tenements,  &c.,  and  in  the  statute  re- 
lating to  conveyances,  to  include  chattels  real.  So  in  Arkansas,  in  the 
statute  relating  to  estates,  &c.(7) 

(1)  1  Cruise,  38;  Co.  Lit.  9  a,  n.  1;  Pusey 
V.  Pusey,  1  Vern.  273  ;  Ibbetson  v.  Ibbetson, 
5  My.  &  C.  26  ;  Conduitt  v.  Soan«,  1  Coll.  285; 
N.  H.  Rev.  St.  45  ;  Maine  lb.  45  ;  Verm.  lb. 
240,  294. 

(2)  Amos  on  Fix.  161,  et  seq. 

(3)  Antl^ion's  Shep.  428. 

(4)  Liford's  case,  11  Co.  50 — an  interesting 
and  valuable  case. 


(5)  Aiitli.  Shep.  428,  494 ;  Misso.  St.  588. 

(6)  Smiley  v.  Smiley,  1  Dana.  94 ;  1  Ky. 
Rev.  L.  566;  Miss.  L.  1839,  72;  Briscoe  v. 
Wiekliffe,  6  Dana,  164. 

(7)  Mass.  Rev.  St.  60;  lb.  413;  Misso.  St. 
124,  262;  Ark.  Rev.  St.  189,  331;  N.  H. 
Rev.  St.  45 ;  Me.  St.  45;  Vern.  St.  240,  294; 
N.  Y.  Code,  1851,  144;   Dela.  Rev.  Sts.  7. 


(a)  It  will  be  seen  hereafter,  (see  ch.  4,  ss.  3,  13,)  that  important  questions  may  arise  be- 
tween parties  holding  distinct  interests  in  the  same  land — as,  for  instance,  tenant  for  life 
and  the  owner  in  fee,  or  feoffee  and  cestui  que  use — in  regard  to  possession  of  the  title-deeds. 

(6)  The  word  tenement  is  frequently  used  in  a  restricted  sense,  as  signifying  a  house  or 
building ;  but  it  is  also  used  in  a  much  more  enlarged  sense,  as  signifying  land,  or  any  cor- 
poreal inheritance,  or  any  thing  of  a  permanent  nature,  which  may  be  holden.  And  where 
it  was  used  in  a  statute,  providing  a  summary  remedy  for  landlords  to  recover  possession  ; 
held,  that  as  the  act  was  a  remedial  one,  the  latter  sense  of  the  word  should  be  adopted. 
Sacket  v.  Wheaton,  17  Pick.  105. 


CHAP.  I.]  REAL  PROPERTY  IN  GENERAL.  3 

5.  La7ids^  tenements  and  hereditaments,  have  been  held  to  include  a 
reversion  expectant  upon  a  life  estate,  and  also  equitable  estates.  So 
an  insolvent  debtor's  assignment  of  "  all  his  lands,  _tenements  and 
hereditaments,"  will  pass  all  his  real  estate.(l) 

6.  Water  is  neither  land  nor  a  tenement ;  and  is  not  demandable  in  a 
suit,  except  as  so  many  acres  of  land  covered  with  water.  It  is  a  mova- 
ble, wandering  thing,  and  must,  of  necessity,  continue  common  by  the 
law  of  natura  The  air  which  hovers  over  one's  land,  and  the  light 
which  shines  upon  it,  are  as  much  land  as  water  is.(2) 

7.  It  will  be  seen  hereafter,  that  a  subject  of  ownership,  though  in 
its  nature  real,  ma.y  be  owned  in  such  a  way  as  to  constitute  a  chattel 
interest  or  personal  estate.  Thus,  an  estate  for  years  in  land  is  personal 
property;  (see  ch.  14,  s.  23.)  So  is  every  other  estate  less  than  freehold. 
The  terms  real  estate  and  personal  estate,  therefore,  denote  sometimes 
the  nature  of  the  propei'ty,  and  sometimes  the  jmrticular  interest  in  that 
property.  The  former  is  the  popular,  and  the  latter  the  technical  use 
of  those  expressions.  In  conformity  with  the  latter,  things  real  are  said 
to  be  "permanent  as  to  place,  and  perpetual  as  to  duration,"(3)  The 
real  estate  required  to  gain  a  settlement  has  been  held  to  mean  a  free- 
hold interest,  either  rightful  or  wrongful,(4) 

8.  La7id  includes  not  only  the  ground  or  soil,  but  everything  attached 
to  it  above  or  below,  whether  by  the  course  of  nature,  as  trees,  herbage, 
stones,  mines  and  water,  or  by  the  hand  of  man,  as  houses.(a)  The 
legal  maxim  is,  "  ciijus  est  solum,  ejus  est  usque  ad  coe/w?n."  Hence,  if  a 
man  devises  a  lot  of  land  having  a  building  upon  it,  the  building  will 
pass  with  the  land  without  being  named,  even  though  other  buildings 
are  named,  in  the  devise.  But  it  is  usual  to  insert  the  clause,  "  with 
all  the  buildings  thereon."(5) 

9.  A  man  conveys  to  A,  his  daughter,  for  the  consideration  of  love 
and  affection,  a  lot  of  land  with  one-half  of  the  buildings  thereon.  The 
same  day  he  conveys  to  B,  for  the  consideration  of  £800,  one-half  of 
the  buildings  standing  on  the  land  tliis  day  conveyed  to  A.  There  was 
nothing  but  the  last  clause,  to  show  which  was  the  prior  deed.  Held, 
inasmuch  as  the  time,  person,  consideration,  subject  and  purpose  of  the 
two  deeds  were  different,  and,  as  they  were  not  given  in  pursuance  of 
any  joint  contract,  one  could  not  qualify  the  effect  of  the  other,  but 
A  took  the  whole  land  and  buildings,  and  B  took  nothing.  It 
might  have  been  otherwise,  had  both  deeds  been  delivered  simulta- 
neously.(G^Z^) 

10.  Land,  upon  which  were  a  well  and  pump,  was  conveyed  by 

(1)  Cook  V.  Hammond,  4  Mas.  488  ;  Dun- 
lap  V.  Gibbs,  4  Yerg.  94.  See  Moore  v. 
Denn,  7  Bro.  P.  C.  607,  2  B.  &  P.  247  ;  Doe 
V.  Allen,  8  T.  R.  503 ;  Pingree  v.  Comstock, 
18  Pick.  46. 

(2)  Mitchell  v.  Warner,  5  Conn.  497  ;  Co. 
Litt.  4  a.  I      (6)  Isham  v.  Morgan,  9  Conn.  374. 

(3)  1  Swift,  73. 


(4)  Charleston  v.  Ackworth,  1  N.  K.  62. 
See  City,  Ac.  r.  Dedham,  4  Met.  179-80. 

(5)  14  IT.  8,  fol.  12;  Com.  Dig.  Grant  E.  3, 
Co.  Litt.  4  a;  Adams  v.  Smith,  Bre.  221; 
Greenleaf  t;.  Francis,  18  Pick.  117;  4  Y.  & 
Coll.  403. 


{(£)  Where  the  agents  of  the  State  are  empowered  to  take  certain  "lands"  for  the  con- 
struction of  a  canal,  they  have  authority  to  take  the  stones  contained  therein.  Baker  v. 
Johnson,  2  Hill,  342.  The  projection  of  a  building  over  a  piece  of  ground  purchased,  will 
justify  tlie  purchaser  in  rescinding  the  sale.     Pope  v.  Garland,  4  Y.  &  Coll.  403. 

(6)  Williams,  J.,  dissented.  This  case  probably  carries  the  principle  stated  in  the  text  to 
as  great  a  length  as  any  one  to  be  found  in  the  books.     See  Moore  v.  Fletcher,  4  Shepl.  63. 


REAL  PROPERTY  IN  GENERAL. 


[CHAP.  5. 


metes  and  bounds,  without  mentioning  them ;  and  the  following  words, 
"with  pump  and  well  of  water,"  were  afterwards  interlined.  Held,  as 
the  words  did  not  change  the  legal  effect  of  the  deed,  the  alteration 
was  an  immaterial  one,(l) 

11.  The  rule  above  mentioned  is  well  settled  as  a  general  principle 
of  law ;  subject,  however,  to  many  qualifications  or  exceptions,  which 
require  to  be  distinctly  considered.  "We  propose,  accordingly,  to  state 
the  various  cases  in  which  movable  things,  connected  with  or  attached 
to  land,  are  subject  to  a  peculiar  ownership ;  and  the  respective  rules 
of  law  applicable  to  those  cases. 

12.  It  was  anciently  held,  that  there  cx)uld  be  no  freehold  estate  in 
the  chamber  of  a  house,  because  it  must  fail  with  the  foundation;  and^ 
therefore,  that  it  would  pass  without  livery.  But  it  seems  to  be  now 
settled  otherwise.  Ejectment  will  lie  for  a  house,  without  any  land.(a) 
And  where  the  chamber  belongs  to  one  person,  and  the  rest  of  the 
house  with  the  land  to  another,  the  two  estates  are  regarded  in  law  aa 
separate  but  adjoining  dwelling-houses.(2)  So  if  a  house  contain  several 
rooms,  with  an  outer  door  to  each,  and  not  communicating  with  each 
other;  they  are  held  to  be  distinct  houses.  But  if  the  owner  lives  in 
the  house,  the  unoccupied  rooms  are  a  part  of  it.(S)  But  a  lease  even 
of  the  cellar  and  lower  room  of  a  building  of  several  stories,  passes  no 
interest  in  the  land.  Upon  the  destruction  of  the  building,  the  whole 
right  of  the  lessee  is  gone.     It  would  be  so  with  the  lease  of  a  cave.{4:) 

IS.  A  pevj  in  a  meeting-house  is  in  general  deemed  real  estate.(Z)) 
In  England,(c)  the  right  to  a  pew  is  a  franchise^  depending  either  on  a 
grant  from  the  ordinary,  or  on  prescription. (5)  In  Maine,  Michigan, 
and  Connecticut,(6)  pews  are  declared  by  statute  to  be  real  estate.  So 
in  Massachusetts, (7)  except  in  Boston,  where  they  are  treated  as  per- 
sonal property.  In  New  Hampshire,(8)  they  are  personal  estate.  In 
New  York,(9)  the  precise  nature  of  this  kind  of  property  has  been  a 
subject  of  frequent  discussion.     It  is  held  to  be  such  an  interest  in  real 


(1)  Brown  n.  Pinkham,  18  Pick.  172. 

(2)  Bro.  Abr.  Demand,  20 ;  Co.  Litt.  48  b ; 
Otis  V.  Smith,  9  Pick.  2&7  ;  Loring  v.  Bacon, 
4  Mass.  575;  Aldricli  v.  Parsons.  6  N.  H. 
555 ;  Doe  v.  Burt,  1  T.  R.  701.  See  Prop'rs. 
&c.  V.  City,  &.C.,  1  Met.  538 ;  See  Gilliam  v. 
Bird,  2  Ired.  280;  Browning  v.  Dalesrae,  3 
Sandf.  13;  Gillisv.  Bailey,  1  Post  (N.  H.)  149. 

(3)  Tracey  v.  Talbot,  6  Mod.  214. 

(4)  Winton  v.  Cornish,  5  Ohio,  478;  Kerr 
V.  Merchants',  &c.,  3  Edw.  315. 

(5)  2  Black.  428;  3  Kent,  402,  n. 

(6)  1   Smith's  Stat.    145;   Conn.  L.  432; 


Price  t:  Lyon,  14  Conn.  279;  Mich.  Rev.  St. 
266. 

(7)  Bates  v.  Sparrel,  10  Mass.  323  ;  Mass. 
Rev.  Stat.  413. 

(8)  N.  H.  L.  186,  Rev.  Stat.  369. 

(9)  Elder  V.  Rouse,  15  Wend.  218;  Trus- 
tees, &e.  V.  Bigelow,  16  lb.  28.  See  Brick, 
&c.,  3  Edw.  155;  Baptist,  &c.  v.  Witherell,  3 
Paige,  302 ;  Shaw  V.  Beveridge,  3  Hill,  26; 
Heeney  v.  St.  Peter's,  &c.,  2  Edw.  608; 
Voorhees  v.  The  Pre.sbyterian,  &c^  8  Barb. 
135. 


(a)  So,  where  land  has  a  house  on  it,  occupied  by  several  tenants,  who  rent  different 
apartments,  they  are  joint  occupants  of  the  land,  and  may  be  proceeded  against  jointly  ia 
an  action  of  ejectment.     Pearce  v.  Golden,  8  Barb.  Sup.  Ct.  522. 

(b)  A  suit  against  a  pew-holder  for  rent,  the  pew  having  been  granted  to  him  and  his 
heirs  by  a  church  corporation,  is  an  action  in  which  the  title  to  real  estate  comes  in  ques- 
tion, it  being  necessary  for  the  plaintiffs  to  show  title  in  the  defendants,  in  order  to  recover 
the  rent ;  therefore  the  plaintiffs,  in  such  a  suit  in  the  circuit,  are  entitled  to  full  costs  if 
they  prevail,  though  the  verdict  is  for  less  than  $100.  Presbyterian  Church  v.  Andruss,  1 
New  Jersey,  325. 

(c)  The  parson  has  the  freehold  of  his  church,  and  the  right  in  a  pew  Is*  a  mere  easement 
annexed  to  a  particular  messuage.  Pews  are  subject  to  the  control  of  the  church-wardenaj 
under  the  ordinary.    See  Reynolds  v.  Monkton,  2  Carr.  &  K.  385. 


CHAP.  I.] 


REAL  PROPERTY  IN  GENERAL. 


tsiate  as  oomcs  within  the  Statute  of  Frauds,  though  the  contract  relate 
to  a  meeting-house  not  yet  erected.  But  a  statute,  requiring  authority 
from  the  chancellor  to  empower  a  religious  corjfK)ration  to  sell  its  reai 
estate,  was  hekl  not  applicable  to  a  sale  of  the  pews.  In  the  same  State, 
it  has  been  held,  that  a  j>e\v-holder  has  no  interest  in  the  soil.  The 
freehold  is  in  the  trustees,  who  may  sell  the  property,  notwithstanding 
the  rights  of  pew  owners.(l)(a)  The  property  in  a  pew,  whether  the 
owner  be  a  member  of  the  society  or  not,  is  not  absolute,  but  qualified 
and  usufructuary  ;  an  exclusive  right  to  occupy  a  certain  part  of  the 
meeting-house  for  the  purpose  of  attending  public  worship,  and  no 
other ^  and  is  necessarily  subject  to  the  right  in  the  parish  or  town  to 
remove,  take  down,  repair,  &c.,  unless  these  acts  be  done  wantonly. 
If  the  house  is  burnt,  or  destroyed  by  time,  the  right  ceases.  In  Mas- 
sachusetts and  Vermont,  it  has  been  held,  that  if  the  taking  down  of  a 
meeting-house  is  necessary,  the  parish  is  not  bound  to  indemnify  the 
pew-holders ;  otherwise,  if  merely  expedient.ih)  A  subsequent  case  in 
Massachusetts  decides,  that  if  the  parish  abandon  the  meeting-house  as 
a  place  of  worship,  though  still  fit  for  that  purpose,  but  without  proof 
of  its  acting  wantonly,  or  with  intent  to  injure  a  pew-owner,  and  erect 
a  new  one  elsev/here ;  it  does  not,  thereby,  incur  any  liability  to  such 
pew-owner.  The  Revised  Statutes  provide  for  compensation  to  pew- 
kolders,  in  such  cases,  according  to  an  appraisement,  except  where  the 
house  has  become  unfit  for  public  worsliip.(c)  It  has  been  held,  that 
where  a  parish  proceeds  legally  in  destroying  a  pew,  a  tender  of  the 
value  to  the  owner  is  a  good  plea  to  an  action  for  damages.(2) 

14.  If  one  man  erect  buildings  upon  the  land  of  another^  voluntarily  and 
without  any  contract,  they  become  a  part  of  the  land,  and  the  former 
has  no  right  to  remove  them.  Such  buildings  are,  prima  fade,  part  of 
the  realty. 

15.  A  husband  erected  a  dwelling-house  and  joiner's  shop  upon  land 
belonging  to  his  wife,  and  died.  Held,  as  no  binding  contract,  in  re- 
gard to  such  erection  could  have  been  made  with  the  wife  during  co- 


(1)  Freligh  v.  Piatt,  5  Cow.  494;  Passett 
V.  First  Parish,  Jkc,  19  Wend.  361. 

(2)  Gay  r.  Baker,  17  Mass.  438;  Howard 
V.  First  Parish,  tc,  1  Pick.  138;  Mass.  Rev. 
Stat.  205  ;  Fisher  v.  Glover,  4  N.  H.  18G  ;  5 
Cow.  494 ;  Price  v.  Methodist,  &c.,  4  Ohio, 


515;  Kimball  w.  Second,  &c.,  24  Pick.  347; 
Pettman  v.  Bridger,  1  Phill.  316.  See  First, 
&c.  V.  Spear,  15  Pick.  144;  Second,  &c.  v. 
Waring,  24  lb.  304;  Stat.  1841,  206;  Kellogg 
('.  Dickinson,  Law  Rep.,  May,  1846,  p.  32; 
18  Verm.  266. 


(a)  Where  a  rceeting-liouse  was  conveyed  to  trustees  to  be  used  for  public  worship  only, 
and  the  deeds  of  pews  referred  to  this  conveyance-  iield,  a  pew-owner  had  the  exclusive 
right  to  hiH  pew  at  all  tijKes,  aad  might  use  any  means  to  shut  out  others,  which  would  not 
annoy  other  pew-owners.  Jackson  v.  Rounseville,  5  Met.  127.  Tenant  in  common  of  a 
merting-iiouse  may  maintain  trespass  for  an  injury  to  a  pew  against  one  having  no  title 
«ither  in  the  pew  or  house.  Murray  v.  Cargill,  32  Maine,  517;  Kellogg  r.  Dickinson,  18 
Vt  G6.  A  pew-owner  may  sustain  an  action  of  trespass  on  the  case  against  one  who  un- 
lawfully disturbs  him  in  the  possession  of  his  pew.     lb. 

(b)  So  in  New  York,  wlvenever  it  is  necessary  or  proper,  the  trustees  may  take  down  the 
old  edifice,  and  rebuild  on  the  .same  spot  or  elsewhere,  and  may  alter  the  lerm  and  shape 
of  the  building,  for  the  purpose  of  making  it  more  conveaieBt  aad  spacious.  Voorliees  v. 
The  Presbyterian,  &e.,  8  Barb.  1S5. 

In  doing  this,  they  may  take  down  and  reiEove  tlie  pews,  when  necessary.  And  the 
pew-holders  cannot  maintain  either  trespass  or  ejectment.     lb. 

But  if  a  pew  is  destroyed  for  convenience  only,  or  if  the  trustees  have  been  guilty  of  a 
wanton  and  malicious  abuse  of  their  power  in  destroying  it,  the  owner  may  recover  dam- 
ages,    lb. 

(c)  By  Statute  of  1853,  959,  a  parish  may  sell  the  house,  without  taking  down  pewa,f 
the  purpose  of  building  a  new  one. 


g  REAL  PROPERTY  IN  GENERAL.  [CHAP.  I. 

verture,  the  buildings  belonged  to  her,  and  could  not  be  applied  to  pay- 
ment of  his  debts.(l) 

15  a.  A  built  a  rail  fence  on  B's  land.  B  moved  and  kept  the  rails 
without  breach  of  the  peace.     Held,  trover  (^\d.  not  lie  against  bim.(2) 

16.  So  if  one  man  take  another's  timber  wrongfully,  and  use  it  in 
erecting  or  repairing  buildings  upon  his  own  land,  it  becomes  his  pro- 
perty.(3)(a)  And  the  same  rule  applies,  where  the  timber  consists  of 
the  materials  of  a  building  taken  down  by  one  man  and  belonging  to 
another.(4) 

17.  After  a  mortgage  of  land,  with  a  dwelling-bouse  thereon,  to  A^ 
the  mortgagor  removed  the  building,  used  a  part  of  the  materials,  with 
others,  in  erecting  a  house  upon  other  land,  and  afterwards  conveyed 
the  land  and  building  last  named,  for  valuable  consideration,  to  B.  A 
brings  trover  against  B  for  the  new  house  and  the  materials  used 
upon  it.  Held,  such  materials  became  a  part  of  the  freehold,  and  B 
became  the  owner  of  them  by  the  conveyance  to  him  ;  and  that  the 
action  would  not  lie.(5) 

18.  On  the  other  hand,  there  are  many  cases  where  one  man  may 
own,  as  personal  property,  a  building  erected  upon  the  land  of  an- 
other.(6) 

(1)  Washburn  v.  Sproat,   16  Mass.   449;  (      (4)  Peirce  jr.  Goddard,  22  Pick.  559. 
Smith  V.  Benson,  1  Hill,  176  ;  Brown  v.  King,         (5)  lb. 

5  Met.  1T3;  Baltimore  v.  McKim,  3  Bland,         (6)  Russell  v.  Richards,  2  Fairf.  371 ;  Hil- 
455..  borne  v.  Browne,  3,  16-2  ;  Jewett  v.  Partridge-, 

(2)  Wentz  V.  Fincher,  12  Ired.  297.  lb.  243. 

(3)  Amos  on  Fixt.  9,  n.  a.  I 

(a)  But  if  A  cut  down  B's  trees,  and  make  them  into  shingles  and  short  logs,  these  arti- 
cles belong  to  B.  So  with  coals  made  from  another's  wood.  Betts  v.  Lee,  5  John.  348  ; 
Chandler  V  Edson,  9,  363;  Curtis  v.  Groat,  6,  168.  A  agreed  with  B,  to  convey  land  to 
B,  when  B  should  erect  a  house  thereon,  and  B  agreed  to  erect  sudi  house  and  mortgage 
the  premises  to  A.  Held,  the  house  did  not  belong  to  B  till  he  received  a  deed  of  the 
land,  and  he  couM  not  mortgage  the  house  as- personal  property.    Milton  v.  Colby,  5  Met.  78. 

Where  a  reversioner  erects  and  occupies  a  building  on  the  land  with  the  assest  of  the 
tenant  for  life,  and  conveys  it  to  a  third  person,  the  grantee  cannot  hold  it  against  the 
tenant  for  life.     Coopers.  Adams,  6  Cush.  87. 

A  erects  a  building  upon  the  land  of  B,  taking  a  bond  from  B  to  convey  the  land  t© 
bim  on  payment  of  a  certain  sum  within  a  certain  time.  Held,  a  mortgage  of  the  building 
from  A  to  B  need  noi  be  recorded,  a» against  A's  creditors;  nor  was  the  building  for- 
feited in  60  days  after  breach  of  condition.     Eastman  v.  Foster,  8  Met.  19. 

Although  buildings  are  erected  on  land  by  license  of  the  owner,  if  the  owner  thereafter, 
in  a  conveyance  of  the  land  to  the  person  erecting  them,  call  them  his  (the  grantor's)  new 
buildings,  and  convey  them  as  a  part  of  the  estate;  such  person,  having  accepted  such  a 
conveyance,  cannot  establish  a  title  to  them  as  personal  property.  Grover  v.  Howard,  31 
Maine,  546. 

An  exception,  in  a  levy  on  real  estate,  of  "buildings,"  ineludeg  by  implication  the  land 
underneath,  and  such  other  land  and  easements  as  may  be  necessary  for  their  enjoyment, 
if  there  be  notliing  in  the  description  of  tlie  premises  taken  to  rebut  such  an  implijation. 
And  parol  evidence  is  not  admissible,  to  explain  or  vary  the  officer's  return.     lb. 

In  trespass  quare  clamum /regit,  the  plaintiff  coniplained  ©.fan  injury  to  the  house  on  the 
land,  as  well  as  to  the  land  itself;  the  trial  was  had  on  the  question  of  title,  and  a  verdict 
found  for  the  plaintiff.  Held,  the  plaintilT  in  error  could  not  insist  that  the  house  was  per- 
sonal property,  and  tliat  trespass  would  lie  for  its  destruction.  Houghtaling  v.  Houghtaling, 
5  Barb.  379. 

It  is  no  defence  to  a  writ  of  entry,  that  the  tenant  owns  a  building  upon  the  land,  erected 
by  her  intestate  with  the  owner's  consent;  for  if  so,  v/hether  the  demandant  recover  ou 
not,  she  is  entitled  to  a  reasonable  time  to  remove  it.  And  such  tenant  cannot  defend  such 
action,  on  the  ground  that  her  intestate's  conveyance  of  tlie  building  to  the  owner,  unde? 
whom  the  demandant  claims,  by  a  subsequent  «onveyance,  w:is  fraudulent  as  against  credr 
itors,  whom  she  represents  as  administratrix.  She  has  simply  a  power  to  sell.  Bulleu  V: 
Arnold,  31  Maine,  583.    Ace.  Hutchius  v.  Shaw,  6  Cush.  53. 


CHAP.  I.]  REAL  PROPERTY  IN  GENERAL.  7 

19.  A  son,  by  permission,  erected  a  liousc  upon  the  laud  of  his 
father,  under  the  mutual  expectation  that  the  land  would  be  devised 
to  the  son,  but  with  no  agreement  that  the  father  should  own  the 
house,  or  be  accountable  for  its  value.  Held,  the  house  belonged  to 
the  son  as  personal  property. (I) 

20.  A  town-house  was  built  on  land  of  the  town,  under  a  contract 
with  the  builder,  tliat  the  town  should  occupy  a  part  of  it  at  a  certain 
rent,  and  have  the  right  to  purchase  the  house  at  an  appraised  value. 
Held,  the  house  belonged  to  the  builder  as  personal  property.(2) 

21.  Trespass,  for  taking  and  carrying  away  the  plaintiff's  "small 
fish-house  or  camp,"  and  burning  up  and  destroying  his  "  wooden 
camp  or  small  house,"  upon  an  island  in  another  State.  The  evidence 
showed  that  the  injury  was  done  to  a  building  without  a  cellar,  about 
nineteen  feet  square,  used  by  the  plaintiff  and  his  men  as  a  dwelling, 
in  the  spring,  while  catching  salmon.  Held,  neither  the  declaration 
nor  evidence  showed  the  property  to  be  real  estate.(3) 

21  a.  In  an  action  of  trespass  for  an  injury  to  a  building,  owned  by 
and  in  the  possession  of  the  plaintiff,  the  defendants  justified  the  acts 
complained  of,  on  the  ground  that  they  did  them  by  the  direction  of 
A,  who  owned  the  land  on  which  the  building  stood,  subject  to  a  right 
of  way  in  the  public,  the  building  constituting  an  incumbrance  on  the 
land  of  A;  also  that,  the  building  being  an  obstruction  in  the  highway, 
the  defendants  removed  it  for  the  plaintiff,  after  he  had  been  requested 
and  had  neglected  to  remove  it;  also,  that  such  highway  needed  to  be 
graded  and  made,  and  the  defendants  removed  the  building  on  the 
plaintiff's  account,  in  order  to  grade  and  make  the  road.  The  plaintiff, 
to  show  that  he  was  the  owner  and  in  possession  of  the  building, 
offered  in  evidence  a  deed  of  it  to  the  plaintiff,  executed  by  certain 
individuals,  as  a  committee  of  a  fire  engine  company;  a  vote  of  such 
company,  signed  by  all  its  members,  authorizing  the  sale  and  transfer 
of  the  building  by  said  committee;  proof  that  the  company  erected  the 
building  with  their  own  funds;  that,  up  to  the  time  of  the  sale,  they 
had  used  it  exclusively  for  an  engine-house,  and  for  their  library  ;  that 
all  the  members  of  the  company,  at  the  time  of  the  sale,  delivered,  each 
one,  his  key  of  the  building  to  the  plaintiff;  that  all  prior  members  had, 
on  leaving  the  company,  left  the  building  to  their  successors,  making 
no  claim  to  it  thereafter  ;  that  the  avails  of  the  sale  to  the  plaintiff  were 
appropriated  by  the  company  to  procure  for  them  another  engine- 
house  ;  and  that  no  other  person  had  objected  to  the  sale,  or  made  any 
claims  to  the  avails  thereof.  Held,  such  evidence  was  admissible 
for  the  purpose  for  which  it  was  offered ;  and,  thereupon,  it  was  fur- 
ther held:  1.  That  the  members  of  the  company  had. property  in  the 
building;  2.  That,  though  not  incorporated,  they,  as  individuals,  could 
hold  the  property  ;  3.  That  the  vote  of  the  company,  with  the  assent 
of  each  individual  member  in  writing,  was  binding,  and  imparted  au- 
thority to  their  committee;  4.  That  the  building,  under  the  circum- 
stances of  the  case,  was  personal  estate,  and  might  be  transferred  with- 
out sale.(4) 

22.  A  bathing-house  was  erected  by  an  individual,  on  piles  driven 
into  the  bed  of  a  navigable  river,  below  low  water  mark,  and  after- 

(1)  Wells  V.  Bannister,  4  Mass.  514.  I      (3)  Rogers  v.  Woodbury,  15  Pick.  156. 

(2)  Ashmun  v.  Williams,  8  Pick.  402.         |      (4j  Curti.ss  v.  Hoyt,  19  Conn.  154. 


8 


REAL  PROPERTY  IN  GENERAL, 


[CHAP.  I. 


wards  mortgaged  by  him.  Held,  as  he  had  no  interest  in  the  soil,  the 
building  was  a  chattel,  and  no  equity  of  redemption  remained  in  liim, 
liable  to  be  taken  on  execution. (1) 

23.  But  a  building  so  erected,  may  be  sold  on  execution  as  personal 
property,  and  the  purchaser  may  legally  enter  on  the  land  to  remove  it. 
The  occupant  has  the  right  of  passing  over  the  close  of  the  owner  of  the 
land,  to  and  from  the  highway. (2) 

24.  Such  building  will  pass  by  bill  of  sale,  and  not  with  a  deed  of 
the  land ;  nor  can  it  be  extended  upon,  or  recovered  in  a  real  action. 
Trover  will  lie  for  it  as  for  other  chattels.  But  it  may  be  validly  at- 
tached, like  real  estate,  without  taking  actual  possession.(a)(3) 

25.  The  owner  of  the  land  will  not  gain  a  title  to  the  building, 
merely  by  a  neglect,  on  the  part  of  the  owner  of  the  latter,  to  occupy  or 
claim  it. 

26.  A  erected  a  saw-mill  on  the  land  of  B,  with  his  permission.  The 
building  was  sold  to  C,  upon  an  execution  against  A,  and  B  afterwards 
sold  the  land  to  D.  The  building  remained  vacant  three  years,  and  D 
made  no  objection  to  its  being  on  the  land.  Held,  the  purchaser  of 
the  building  had  not  waived  his  right  toit.(4) 

27.  Where  one  in  possession  of  land,  hona  fide^  as  his  own,  has  erected 
buildings  upon  it ;  he  or  his  grantee  may  remove  them,  without  incur- 
ring any  liability  to  the  true  owner  of  the  land.(5) 

28.  There  are  other  things  connected  with  or  attached  to  land,  and 
therefore  ^ri'ma/aae  subject  to  the  same  ownership  with  it,  which,  by 
special  acts  or  agreements,  may  be,  in  point  of  title,  separated  from  the 
land. 

29.  In  England,  mines  of  gold  and  silver,  by  the  royal  prerogative, 
belong  to  the  crown  ;  which  may,  in  a  grant  of  laud,  reserve  all  mines. 
But  this  gives  no  right  to  the  crown  to  enter  in  search  of  them,  but 
only,  after  they  are  opened,  to  restrain  the  tenant  from  working 
them,  work  them  itself,  or  license  others  to  do  it.(6)(6)  The  United 
States,  in  the  sale  of  the  public  lands,  reserve  all  salt  springs  and  lead 


(1)  Marcy  v.  Darling,  8  Pick.  283. 

(2)  Doty  V.  Gorham,  5  Pielc.  487. 

(3)  Aldrich  v.  Parsons,  6  N.  H.  555 ;  2 
Pairf.  371;  8  Pick.  402:  Steward  v.  Lofnbe, 
1  Brod.  &  B.  506 ;  Tapley  v.  Smith,  5  Shepl. 
12. 


(4)  2  Fairf.  371;   Harris  v.  Gillingham,  6 
N.  H.  9;   5  Shepl.  12. 

(5)  Wickliffe  v.  Clay,  1  Dana,  591. 

(6)  Lyddel  v.  Weston,  2   Atk.   19;  2  Inst. 
577-8,     Plow.  310,  336. 


(a)  One  claiming  under  a  party,  who  has  previously  mortgaged  such  building  as  a  chattel, 
cannot  assert  a  title  to  it  ajrainst  the  mortgagee  as  real  estate,  nor  dispute  the  mortgagor's 
title.     Smith  v.  Benson,  1  Hill,  176. 

{h)  The  prerogative  rests  upon  the  ground,  that  the  king  is  bound  to  defend  the  realm,  and 
to  coin  and  furnish  the  currency  necessary  therefor,  and  for  the  uses  of  trade  and  com- 
merce. It  embraces  no  other  classes  of  mines  than  those  of  gold  and  silver.  Stones  cut  from 
quarries  are  ?n2««rafe  within  the  meaning  of  the  terms  "coals  or  minerals"  in  an  Act  of 
Parliament.  Micklethwait  v.  Winter,  5  Eng.  L.  &  Eq.  R.  526.  See  Gibson  v.  Tyson,  5 
"Watts,  34;  Rossev.  Wainman,  14  Mees  and  W.  859.  In  the  case  of  mines  (Plowd.  310,  336,) 
it  was  held  by  a  majority  of  judges,  Plowden  and  others  dissenting,  that  where  gold  or  sil- 
ver is  mixed  with  other  metals,  the  whole  mine  belongs  to  the  crown.  Otherwise,  by  stat- 
utes, 1  Wm,  &  M.  ch.  30,  5  ib.  ch.  6  ;  which,  however,  allow  the  crown  to  take  the  proceeds 
of  such  mine,  upon  paying  the  owner  therefor. 

Where  mines  are  reserved  from  a  conveyance,  the  owner  of  them  is  still  bound  to  leave 
a  r  easonable  support  for  the  surface  of  the  soil.     Harris  v.  Riding,  5  Mees  &  W.  60. 

So,  when  the  surface  of  land  belongs  to  one  man,  and  the  minerals  to  another,  no  evidence 
of  title  appearing  to  regulate  or  qualify  their  rights,  the  latter  cannot  remove  the  minerals 
•without  leaving  support  sufiScient  to  maintain  the  surface  in  its  natural  state.     The   owner 


CHAP.  I.]  REAL  PROPERTY  IN  GENERAL.  9 

mines.  The  state  of  New  York  reserves  to  itself  all  gold  and  silver 
mines ;  also,  all  mines  of  other  metals  on  lands  of  those  who  are  not 

of  the  surface  close,  while  unincumbered  by  buildings,  and  in  its  natural  state,  is  entitled  to 
have  it  supported  by  tlie  subjacent  mineral  strata  ;  and  if  the  surface  subsides,  and  is  injured 
by  tlie  removal  of  these  strata,  although  the  operation  of  removal  may  not  have  been  con- 
ducted negligently  nor  contrary  to  the  custom  of  the  country,  he  may  maintain  an  action 
against  the  owner  of  the  minerals  for  the  damage  sustained  by  the  subsidence.  Ilumphries 
V.  Brogden,  1  Eng.  Law  and  Eq.  Rep.  241.  In  Virginia,  a  statute  (Code,  525)  provides,  that 
coal  mines  shall  not  be  opened  within  twenty-five  feet  of  adjoining  land,  without  consent. 

A  lease  of  alum  mines  gave  the  lessee  the  right  to  obtain  alum  from  certain  coal  wastes. 
A  subsequent  lease  of  the  coal  mines  provided,  that  nothing  thereby  granted  shall  injure 
the  rights  of  the  parties  who  held  the  alum  mines.  The  alum  existed  in  the  coal  wastes. 
The  coal  lessees  could  not  thoroughly  work  the  coal  without  removing  the  pillars  which 
supported  the  roof;  but  this  would  render  it  impossible  to  reach  the  alum.  Held,  the  coal 
pillars  could  not  be  removed.     Earl,  &c.v.  Hurlet,  8  Eng.  L.  &  Eq.  13. 

In  a  contract  relating  to  mines,  there  is  an  implied  reservation  by  the  owner  of  a  right  to 
enter  and  inspect  them.     Blakesley  v.  "Whieldon,  1  Hare,  176.     See  Micklethwait  v.  Winter, 

5  Eng.  Law  &  Eq.  526. 

Where  a  mine  reserved  or  granted,  is  encroached  upon,  the  proprietor's  remedy  is  trespass 
not  case.     Harker  v.  Birkbeck,  3  Burr.  1556. 

Where  the  owner  of  land  brings  an  action  for  copper  ore  raised  from  under  it,  the  pre 
sumption  of  his  title  to  the  ore  may  be  rebutted  by  proof  of  non-user  on  his  part,  and  a  use 
by  others.     Kowe  v.  Grenfel,  Ry.  &  M.  396. 

A  mining  concern,  erected  by  a  lease  to  several  persons,  who  work  it  jointly,  is  quasi,  a 
partnership  in  trade,  involving  the  usual  partnership  liability  to  creditors.  Fereday  v. 
Wightwick,  1  Taml.  250. 

If  a  licen.se  to  dig  minerals  does  not  clearly  give  an  exclusive  right,  the  grantor  or  his  as- 
signs ma}'  exercise  the  right  in  common  with  the  grantee.     Chetham  v.  Williamson,  Eng.  L. 

6  Eq.  469 ;  Huntington  v.  Mountjoj',  4  Leon.  147. 

It  has  been  held  in  Georgia,  in  the  case  of  the  State  v.  Canatoo,  (3  Kent,  378,  n.,)  that 
a  grant  of  lands  by  the  government  passes  a  perfect  title  to  mines,  unless  expressly  excep- 
ted. As  to  the  reservations  of  rente,  in  consideration  of  mines  contained  in  lands  granted  by 
royal  charters  to  the  several  States;  see  1  Green,  Cruise-38,  n.     3  How.  120. 

Congress  may  authorize  the  president  to  lease  lead  mines  in  the  State  of  Illinois.  U.  S. 
V.  Gratiot,  1  M'Lean,  454. 

In  trespasses  by  the  United  States,  a  permit  to  enter  on  the  lands  which  contained  lead 
ore,  may  be  admitted  in  evidence  to  show  the  nature  and  object  of  the  entry.  United  States 
V.  Geer,  3  McLean,  571. 

The  following  points  have  been  decided  in  Maryland: 

A  lease  granting  the  license,  right,  and  privilege  of  guaging,  getting  out,  working,  and 
carrying  away  granite  stone,  does  not  confer  the  right  of  carrying  away  rubbU  stone.  Emery 
V.  Owings,  6  Gill,  191. 

Gravel-stone  is  a  known  article  of  commerce,  sold  by  the  cubic  foot,  and  is  called  dimen- 
sion stone,  while  rubble  stone  is  sold  in  the  mass,  or  by  the  perch,     lb. 

On  the  11th  June,  1840,  A  leased  to  B,  and  B  to  C,  a  granite  quarry,  known  by  th^ 
name  of  D,  with  the  license  of  quarrying  and  getting  away  stone,  for  the  term  of  six  years 
from  10th  November  following,  and  the  lessees  went  into  possession.  On  the  25th  July, 
1836,  E  and  F,  who  had  title,  leased  to  G  all  their  estate  and  interest,  being  two-third  parts  of 
all  that  lot  within  the  farm  of  A,  called  D,  lor  five  years,  which,  before  action  brought, 
came  to  B  or  C  by  assignment,  as  to  one-half  The  metes  and  bounds  in  both  leases 
were  the  same.  In  an  action  by  A  for  the  rent  due  November  1,  1841,  under  the  lease  of 
June,  1840,  it  was  held,  tliat  the  lease  of  1836  was  a  grant  of  the  superficies  of  the  soil,  and 
did  not  pass  a  right  to  quarry,  as  it  was  not  opened  at  the  date  of  that  lease  ;  that  this  case 
was  not  one  of  conflicting  leases;  the  deed  of  1836  being  a  lease  of  the  surface  of  the 
soil,  that  of  1840,  a  lease  or  licen.se  to  quarry  stone  ;  that,  if  a  man  hath  land,  in  part  of 
which  there  is  a  mine  open,  and  he  leases  the  land,  the  lessee  may  dig  the  mine;  as  the 
mine  is  open,  and  he  leases  all  the  land,  it  shall  be  intended  that  his  interest  is  as  general 
as  his  lease  ;  and  that  a  declaration  in  a  lease,  dated  1840,  that  a  quarry  •'  had  been  re- 
cently, or  a  short  time  ago  possessed  and  worked  by  W,"  could  not  be  understood  as  mean- 
ing that  the  quarry  was  opened  four  years  previously.     lb. 

The  lessor  of  a  coal  mine,  in  Pennsylvania  is  not  liable  for  injuries  to  a  house  on  the  sur- 
face, occasioned  by  the  working  of  the  mine  by  his  tenant.     Ofierman  v.  Starr,  2  Barr,  394. 

The  owner  of  a  mine  demised  the  right  to  mine,  at  a  rent  payable  on  each  ton  of  coal  taken 
out,  reserving  the  right  to  view  and  examine  the  mine,  and  to  re-enter  on  non-payment, 
neglect,  &c.  Held,  that  he  was  a  landlord,  and  was  not  liable  for  an  injury  resulting  from 
the  prosecution  of  the  work  by  the  tenant.     lb. 


10 


REAL  PROPERTY  IN  GENERAL. 


[CHAP.  L 


citizens  of  the  United  States  ;  also,  all  mines  of  other  metals  on  lands 
of  citizens,  if  the  ore  contains  less  than  two-thirds  in  value,  of  copper, 
tin,  iron  or  lead.  But  the  owner  of  a  gold  or  silver  mine  may  enjoy  its 
produce  for  twenty-one  years,  if  he  give  notice  of  the  discovery.(l) 

30.  A  similar  principle  is  often  applicable  to  growing  trees,  which, 
though  standing  upon,  and  rooted  in  the  soil,  may  be  the  subject  of  a 
distinct  ownership.  But  if  the  limbs  of  a  tree  overhang  another  man's 
ground,  they  still  belong  to  the  owner  of  the  root.  If  the  root  extends 
into  the  ground  of  a  neighboring  owner,  whether  he  is  a  tenant  in  com- 
mon of  the  tree  with  the  planter,  or  whether  the  whole  tree  belongs  to 
the  latter,  is  a  point  somewhat  doubtful.  In  Connecticut,  it  has  been 
decided,  that  though  both  the  roots  and  branches  of  a  tree  extend 
to  land  of  an  adjoining  owner,  the  whole  tree,  with  all  its  fruit,  belongs 
to  the  owner  of  the  land  upon  which  it  stands  ;(2)  but  a  tree,  standing 
directly  upon  the  line  between  adjoining  owners,  belongs  to  both 
alike ;  and  either  may  maintain  trespass  against  the  other  for  cutting 
and  destroying  it. (8) 

31.  It  is  said,  that  a  grant  or  devise  of  an  interest  in  growing  wood 
is  (that  of)  an  interest  in  the  soil  itself.  But  it  is  otherwise  with  a  grant 
or  reservation  of  trees.{^){a) 

32.  Where  A  conveyed  to  B  a  lot  of  land  in  fee,  and  B,  on  the  same 
day,  reconveyed  to  A,  his  heirs  and  assigns,  all  the  trees  and  timber 
standing  and  growing  on  said  land,  forever,  with  free  liberty  to  cut  and 
carry  away  said  trees  and  timber,  at  all  times,  at  their  pleasure  forever : 
Held,  A  retained  an  inheritance  in  the  trees  and  timber,  with  an  exclu- 
sive interest  in  the  soil,  so  far  as  it  might  be  necessary  for  the  support 
and  nourishment  of  the  trees.(5) 

33.  It  was  anciently  held  that  trees,  like  the  chamber  of  a  house, 
could  not  be  the  subject  of  a  freehold  estate.(6)  But  it  has  since  been 
settled,  that  trees  reserved  from  a  conveyance  for  life  are  not  personal 
estate,  but  real,  and  will  therefore  pass,  without  being  named,  with  a 
subsequent  grant  of  the  reversion,  notwithstanding  such  grant  expressly 
refers  to  the  reversion  of  that  which  was  previously  leased. (7)  But  it 
is  said  that  a  grant  of  trees  passes  them  to  the  grantee  as  chattels,  and 
that  he  may  maintain  trespass  for  any  injury.  If  no  time  is  fixed  for 
their  removal,  the  law  implies  a  reasonable  time.(8) 

•  34.  It  has  been  held  in  New  Hampshire,  that  a  sale  of  growing  trees, 
to  be  taken  within  a  certain  time,  is  within  the  Statute  of  Frauds,  and 
must  be  in  writing,  though  not  necessarily  by  deed.     So  in  Illinois,  a 


(1)  1  N.  Y.  Rev.  Stat.  281,  124;  Walk.  In- 
tro. 43.  See  Raine  v.  Alderson,  4  Ring.  N. 
702;  Grubb  v.  Guilford,;4  Watts,  223. 

(2)  1  Swift,  104;  Waterman  v.  Soper,  1 
Lord  Ray,  737  ;  Masters  v.  Pollie,  2  Rolle's 
Rep.,  141 ;  Holder  v.  Coates,  1  Moo.  &  M.  1 12 ; 
Lyman  v.  Hale,  11  Conn.  177.  See  Bank  v. 
Crary,  1  Barb.  542 

(3)  GrifBn  v.  Bixby,  12  N.  H.  454. 

(4)  Wright  V.  Barrett,  13  Pick.  44  ;  Liford's 


Case,  11  Co.  50 ;  See  Com.  Dig.  Biens,  G.  2  ; 
See  Nettleton  v.  Sikes,  8  Met.  34. 

(5)  Clap  V.  Draper,  4  Mass.  266  :  Rehoboth 
V.  Hunt,  1  Pick.  224;  Howard  v.  Lincoln,  1 
Shepl.  122. 

(6)  Bro.  Abr.  Demand,  20. 

(7)  Liford's  Case,  11  Co.  47. 

(8)  Slukely  v.  Butler,  Hob.  (Am.  ed.)  310  ; 
1  Shepl.  122  ;  Sawyer  v.  Hammatt,  3  lb.  40. 


(a)  A  conveyance  of  growing  trees  is  not  within  the  recording  Act,  and,  though  not  recor- 
ded, is  valid  against  a  subsequent  purchase  of  the  land  without  notice.  Warren  v.  Leland,  2 
Barb.  C13.  And  where  land  is  so  conveyed  without  any  reservation  of  the  growing  trees, 
the  owner  of  the  trees  may  maintain  replevin  in  the  cepit  against  him.   lb. 


CHAP.  I.] 


REAL  PROPERTY  IN  GENERAL. 


11 


constable  cannot,  under  an  execution  from  a  justice  of  tlie  peace,  enter 
upon  land  and  sell  fruit-trees  there  standing  and  growing,  they  beinc^ 
part  and  parcel  of  the  land,  and  not  goods  and  chattels.  But  in  Massjv 
chusetts  it  is  held  that  sect.  1,  c.  74  of  tiie  Kcvised  "Statutes— the 
Statute  of  Frauds — does  not  apply  to  an  agreement  for  the  sale  of  mul- 
berry trees,  growing  in  a  nursery,  and  raised  for  sale  and  transplanting, 
to  be  delivered  on  the  ground  where  they  are  growing,  on  payment  of 
the  price  ;  as  being  an  interest  in  or  concerning  lands,  &c.  In  a  later 
case  it  is  said,  whether  a  sale  of  growing  wood  is  a  sale  of  real  estate, 
may  depend  on  the  terms  of  sale ;  whether  the  wood  is  to  stand  any 
time,  to  be  sustained  and  nourished  by  the  soil ;  or  whether  there  was, 
or  was  meant  to  be,  a  written  memorandum  of  the  contract.  And  in  a 
still  more  recent  case  it  was  decided,  that  a  contract  for  the  sale  of  grow- 
ing wood  and  timber,  to  be  cut  and  removed  by  the  purchasers,  is  not 
\yithin  the  Statute  of  Frauds.  So  a  mortgage  of  growing  wood  and 
timber,  by  a  purchaser  thereof,  is  a  mortgage  of  personal  property,  to 
take  effect  when  the  wood  shall  be  severed,  and  well  recorded  in  the 
town-clerk's  books.  In  case  of  a  levy  on  the  land,  (after  a  valid  sale 
of  timber,)  subject  to  the  vendor's  right,  and  a  subsequent  conveyance 
without  such  reservation  ;  the  timber  does  not  pass,  though  the  sale  of 
it  was  neither  recorded,  nor  known  to  the  purchaser  of  the  land.(l) 

35.  From  what  has  been  said,  it  may  be  seen  that  growing  trees, 
though  they  may  be  disannexed  from  the  soil  by  some  act  of  the  owner, 
are  still,  independent  of  any  such  act,  a  part  of  the  soil,  and  owned  ac- 
cordingly. The  same  rule  seems,  in  general,  applicable  to  other  vege- 
table productions.  Prima  facie  they  belong  to  the  soil,  and  pass  by  a  con- 
veyance thereof,  though,  it  is  said,  not  under  ^judicial  sale;  but  may 
be  separated  from  it  by  some  special  transfer,(a) 

ZQ.  It  is  to  be  observed,  however,  that  corn,  a  crop  of  potatoes,  or 
any  other  product  of  the  soil,  raised  annually  by  labor  and  cultivation, 
when  ripe  is  personal  estate,  may  in  general  be  seized  or  sold  on 


(1)  Putney  v.  Day,  6  N.  H.  430;  Olmstead 
V.  Niles,  7,  522;  Adams  v.  Smith,  1  Bree.  221 ; 
Whitmarsh  v.  Walker,  I  Met.  313;  Robinson 
V.  Green,  3  Met.  160-1  ;  Claflin  v.  Carpenter, 
4  Met.  580.  See  Bostwick  v.  Leacli,  3  Day 
176. 

A  agreed  with  B,  that  ho  might  cut  the 
trees  on  A's  laud,  peel  them,  and  take  the 
bark  for  hi.s  own  use.  Held,  not  wifliin  the 
Statute  of  Frauds.  Nettleton  v.  Sikes,  8  Met. 
34. 

In  England,  an  agreement  for  tiie  sale  of 
growing  fruit  i.s  held  to  concern  an  interest  in 
land.     Rod  well  v.  Phillips,  9  M.  &  W.  501. 


So  the  sale  of  a  crop  of  growing  grass. 
Crosby  v.  Wadsworth,  6  E.  602  ;  Evans  v. 
Roberts,  6  B.  &  C.  829.  And  of  growing  hops 
and  turnips.  Waddington  v.  Bristow,  2  Bos. 
&  P.  452 ;  Emmerson  v.  Heeli.s,  2  Taun.  38. 
Otherwise  with  wood  or  timber,  growing,  and 
to  be  cut  and  delivered.  Smith  v.  Surinan, 
Barn,  k  C.  561.  But  see  Teal  v.  Awty,  2 
Brod.  &  B.  99. 

In  North  Carolina,  a  grant  of  the  vesture  or 
herbage  passes  a  particular  right  in,  and  pos- 
session of,  the  land,  which  will  sustain  tres- 
pass. But  a  sale  of  fructus  industriaks  is  a 
sale  oC goods.    Saunders  v.  McLin,  1  Ired.  572. 


(a)  "By  contract,  custom,  or  special  rules  of  law."  Calhoun  v.  Curtis  4  Met.  415.  See 
Foot  V.  Colvin,  3  John.  222  ;  Bank.  &c.  v.  Wise,  3  Watts,  394 ;  Com.  Dig.  Biens  H.  3. 
Growing  fruit  trees  have  been  called,  perhaps  somewhat  inaccuratelv.  fixtur^  Mitchell  v 
Billingsley,  17  Ala,  391.  "^  -^ 

In  connection  with  the  ownership  of  trees,  it  may  be  stated,  that  bees,  which  take  up  their 
abode  in  a  tree,  belong  to  the  owner  of  the  soil,  if  unreclaimed;  but,  if  reclaimed  and  iden- 
tified, to  their  former  owner.  Goff  v.  Kilts,  15  Wend.  550.  Merely  finding  a  tree  on 
another's  land,  which  contains  a  swarm  of  bees,  and  marking  it,  does  not  give°the  finder  a 
title  to  the  bees.     Gillet  v.  Mason,  7  John.  16. 


12  REAL  PROPERTY  IN  GENERAL.  [CHAP.  I. 

execution  as  such,  and,  upon  the  owner's  death,  passes  to  his  execu- 
tor.(l) 

37.  But,  by  express  statutes,  in  Kentucky,  a  crop  shall  not  be  levied 
upon  while  growing,  excepting  corn  after  the  first  of  October.  In  Ala- 
bama, not  till  gathered.  In  Michigan,  there  may  be  a  levy,  but  no  sale. 
And  the  creditor  retains  a  lien  thirty  days  after  the  crop  is  ripe  or  sev- 
ered. In  Mississippi,  an  unripe  crop  is  not  subject  to  execution,  nor 
does  the  lien  of  a  judgment  attach  to  it.  In  Tennessee,  a  crop  shall  not 
be  seized  before  the  15th  of  November,  except  for  rent,  where  the  ten- 
ant has  absconded  and  left  the  country.  In  Kentucky  and  Georgia, 
the  growing  crop  Avill  pass  with  the  land,  where  the  latter  is  sold  on 
execution. (2) 

38.  It  has  been  held  in  England,  that  if  a  crop  is  mature — as  for  in- 
stance, a  crop  of  potatoes — the  sale  of  it  in  the  ground,  to  be  gathered 
immediately,  is  not  within  the  Statute  of  Frauds ;  that  the  ground  is  a 
mere  luarehouse,  till  the  crop  can  be  removed.  It  would  be  otherwise, 
if  the  potatoes  were  still  growing.(3)  It  is  remarked  by  Mr.  Chief  Jus- 
tice Savage  of  New  York,  that  the  English  cases  on  this  subject  seem 
not  quite  consistent ;  and,  in  the  later  decisions,  the  fact  that  the  corn  or 
potatoes  were  still  growing  has  been  held  to  make  no  difference.(4) 

39.  If  the  owner  of  the  land  sell  the  crop  upon  it  by  a  parol  contract, 
and  afterwards  convey  the  land  to  another  purchaser,  the  crop  does  not 
pass  to  the  latter.  But  a  parol  reservation  of  such  crop  to  the  grantor 
himself  is  void.(5)(a) 

40.  In  this  connection,  may  properly  be  considered  the  subject  of 
emhle7ne?its. 

41.  Emblements — from  the  French  word  emUeer,  to  sow — are  the 
crops  groiving  upon  land.  The  word,  however,  is  generally  used,  in 
law,  to  denote  crops  which  are  claimed  by  some  person  other  than  the 
general  owner  of  the  land,  as  incident  to  a  particular  estate  therein. 


(1)  Planters',  &c.  v.  "Walker,  3  Sm.  &  M. 
409;  Coombs  v.  Jordan,  3  Bland,  312;  Cas- 
sily  V.  Rhodes,  12  Ohio,  88;  Penhallow  v. 
Dwight,  7  Mass.  34.  (See  Clay,  224;  Brad- 
shaw  V.  Ellis,  2  Dev.  &  B.  23  ;  Ex  parte  Big. 
nold,  2  Dea.  &  Ch.  398.)  An  attachment  oi&xich 
property,  as  of  any  other  chattel,  requires  ac- 
tual possession.  It  must  be  severed  and  re- 
tained by  the  officer.  Heard  v.  Fairbanks,  5 
Met.  511. 

(2)  1  Ky.  Rev.  L.  657  ;  Alab.  L.  319  ;  Tenn. 
Stat.  1833,  ch.  20.  See  Craddock  v.  Riddles- 
barger,  2  Dana,  206  ;  Parham  v.  Thompson,  2 
J.  J.  Mar.  159;  Mich.  St.  1840,  224;  Plant- 


ers, &c.  V.  Walker,  3  Sm.  k  M.  409  ;  Miss.  St. 
1804,  29  ;  Thompson  v.  Craigmyle,  4  B.  Monr. 
392  ;  Pitts  v.  Hendrix,  6  Geo.  452. 

(3)  Parker  v.  Stainland,  HE.  362 ;  War- 
wick V.  Bruce,  2  M.  &  S.  205  ;  Evans  v.  Ro- 
berts, 5  B.  &  C.  829. 

(4)  Austin  V.  Sawyer,  9  Conn.  42.  See 
Carrington  v.  Roots,  2  Mees.  &  W.  248;  Jones 
V.  Flint,  2  Per.  k  Dav.  594;  10  Ad.  &  Ell. 
753 ;  Northern  v.  Slate,  1  Carter,  133 

(5)  Austin  V.  Sawyer,  9  Cow.  39.  But  see 
Heermance  v.  Vernoy,  6  John.  5 ;  Gibbons 
V.  Dillingham,  5  Eng.  9. 


(a)  Devise  of  lands  in  fee,  with  all  the  crops  thereon,  whether  gathered  or  growing  at  the 
testator's  death.  Held,  this  included  not  only  the  crops  of  the  year  in  which  he  died,  but 
those  of  the  preceding  year,  remaining  on  the  land,  and  those  brought  there  from  other  lands, 
to  be  stored.  Carnagy  v.  Woodcock,  2  Munf  234.  A  deed  of  land  will  pas.s  tlie  grain 
growing  thereon,  although  the  grantor  subsequently  takes  charge  of  the  crop  and  of  the 
fences  enclosing  it,  without  objection  from  the  grantee.  Wilkins  v.  Washbinder,  7  Watts, 
378.  If  a  lessor  reserves  the  growing  crop  and  afterwards  conveys  the  land,  not  mention- 
ing the  crop,  it  belongs  to  the  purchaser.  Buniside  v.  Weightman,  9  Watts,  46.  Lease 
of  land,  reserving  for  rent  a  proportion  of  the  crops.  While  these  were  growing,  the 
lessor  convej'ed  the  land  without  reservation.  Held,  the  deed  passed  the  rent,  and  the  ten- 
ant was  bound  to  attorn  ;  but  the  grantor  could  not  maintain  trespass  against  the  grantor, 
for  entering  and  taking  the  crops.     Gibbons  v.  Dillingham,  5  Eng.  9. 


CHAP.  I.] 


REAL  PROPERTY  IN  GENERAL. 


13 


42.  Emblements  include  only  such  vegetables  as  yield  an  annual 
profit,  and  are  raised  by  annual  expense  and  labor,  or  "  great  manurance 
and  industry" — such  as  grain  ;  but  not  trees,  nor  fruits,  clover,  grass, 
&c.,  though  annual,  because  they  are  spontaneous.  Am.1  even  though 
grass  be  improved  by  labor,  as  by  trenching  or  sowing  hayseed,  it  is 
not  a  subject  of  emblements,(a)  Otherwise  with  ho2)s,  though  growing 
on  ancient  roots ;  and  the  artificial  grasses,  as  clover,  saintfoin,  &c.(l) 

43.  The  doctrine  of  emblements  is  founded  on  the  clearest  equity 
and  the  soundest  policy,  and  ought  to  receive  a  liberal  encourage- 
inent.(2) 

44.  Where  a  tenant  for  life  dies  before  harvest  time,  his  executors 
shall  have  the  crops  then  growing,  as  a  return  for  his  labor  and  ex- 
pense in  tilling  the  ground ;  and,  if  sold  after  his  death,  they  shall  have 
the  proceeds,  deducting  only  the  expenses  of  sale.(3) 

45.  Where  the  estate  is  terminated  in  any  other  way  than  by  his 
death,  either  by  act  of  God  or  act  of  law,  the  tenant  himself  has  the 
emblements.     But  not  if  he  terminates  it  by  his  own  act.(4) 

46.  Thus,  where  one  is  tenant  pour  autre  vie,  and  the  cestui  que  vie 
dies  before  harvest,  the  former  shall  have  emblements.  So  if  an  estate 
be  made  to  husband  and  wife  during  coverture,  (which  is  a  life-estate,) 
and  they  are  afterwards  divorced  causa  j^^^cojitr actus,  he  shall  have 
emblements ;  because  the  divorce,  although  founded  on  the  application 
of  a  party,  is  itself  the  act  of  law.(6)  But  if  a  woman,  tenant  during 
widowhood,  marries  again  ;  or  if  a  tenant  forfeits  by  breach  of  condi- 
tion ;  they  have  no  emblements,  because  the  estate  is  determined  by 


(1)  Co.  Litt.  55  b,  and  n.  2;  Com.  Dig. 
Biens  G.  1;  Latham  v.  Atwood,  Cro.  Car. 
515;  1  Rolle  Abr.  728;  Grantham  v.  Havvley, 
Hob.  132;  Evans  v.  Inglehart,  6  Gill  &  J. 
168  ;  Kittredge  v.  Woods,  3  N.  H.  504 ;  2 
Dana,  206  ;  Ladd  v.  Abel,  18  Conn.  513. 


(2)  Stewart  v.  Doughty,  9  John.  112. 

(3)  1    Cruise,   80;    Hunt   v.   Watkins, 
Humph.  498. 

(4)  lb.     Debow  v.  Colfax,  5  Hals.  128  ; 
N.  H.  504, 


(a)  Growing  grass  cannot  be  taken  as  chattels  on  execution,  even  though  the  defendant 
turns  out  the  grass  to  the  shcritt'.  But  there  may  bo  a  legal  severance  of  trees  or  grass 
from  the  land,  without  an  actual  severance ;  as  where  the  owner  sells  and  conveys 
them  in  writing,  and  where  ho  conveys  the  lands,  reserving  the  trees  and  grass.  A 
mortgage  of  such  trees  or  grass  will  not  work  a  severance  until  the  mortgage  becomes  abso- 
lute.    Bank,  &c.  v.  Crary,  1  Barb.  542. 

Where  A  demised  to  B  his  farm  for  999  years,  B,  in  consideration  thereof,  covenanting 
to  furnish  A  with  "one  half  of  all  the  produce  of  the  farm;"  and  B  cut,  carried  otT  and 
sold  wood  and  timber,  in  an  action  brought  by  A  against  B  for  one  half  of  the  avails  of 
such  wood  and  timber,  held;  the  expression  "yearly  produce,"  as  used  in  this  covenant,  did 
not  comprehend  the  wood  and  timber  of  the  farm,  but  only  such  crops  as  are  annually 
gathered.     Ladd  v.  Abel,  18  Conn.  513. 

The  right  of  emblements  does  not  apply  to  a  crop,  which  ordinarily  does  not  repay  the 
labor  of  producing  it  within  the  year  in  which  such  labor  is  expended,  as,  for  instance,  a 
second  crop  of  clover,  although  the  first  crop,  taken  at  the  end  of  the  term,  did  not  repay 
the  expense  of  cultivation.     Graves  v.  Weld,  5  B.  &  Ad.  105. 

(b)  If  a  husband  lease  lands  of  the  wife,  and,  during  the  term,  she  obtain  a  divorce  a  vin- 
culo, the  emblements  belong  to  the  tenant.  Gould  v.  Webster,  1  Tyl.  409.  Where  lands 
are  conveyed  in  trust  for  a  husband  and  wife,  during  their  joint  lives  and  the  life  of  the  sur- 
vivor, the  crops  growing  at  the  husband's  death,  which  were  planted  before  the  convey- 
ance, survive  to  tiic  wife.  Otherwise  with  those  planted  by  the  husband.  Uaslctt  v. 
Glenn,  7.  Harr.  and  J.  17. 

Where  a  wife  rented  land,  and  made  corn  on  it,  by  the  labor  of  slaves  which  were 
secured  to  her  separate  use;  held,  the  corn  belonged  to  the  wife, and  was  not  subject  to  the 
husband's  debts.     Young  v.  Jones,  9  Humph.  551. 


14 


REAL  PROPERTY  IN  GENERAL. 


[CHAP.  I. 


their  own  act.(l)     So,  where  a  parson  terminates  his  estate  by  his 
voluntary  resignation,  he  has  no  emblements.(a)(2) 

47.  The  right  to  emblements  being  founded  upon  the  supposition  of 
labor  and  expense  incurred  by  the  tenant,  they  are  not  allowed  where 
this  reason  is  wantiag.(3) 

48.  Thus  if  A  sows  corn,  and  then  conveys  the  land  to  B,  re- 
mainder to  C  ;  upon  B's  death  before  harvest,  C  takes  the  crop.(4) 

49.  So  where  the  tenant  dies  before  sowing,  though  after  having 
prepared  the  ground  for  seed,  emblements  are  not  allowed. (5) 

50.  Hence,  an  agreement  to  allow  a  tenant  "  for  preparing  the 
ground  for  seed,  and  for  any  other  extra  labor,"  applies  to  the  clearing, 
manuring  and  plowing  of  the  land,  and  does  not  interfere  with  his  im- 
plied right  to  emblements.(6) 

51.  The  executor  of  a  deceased  joint  tenant  cannot  claim  emble- 
ments, such  tenant  having  had  no  exclusive  title  to  the  land.  Nor  can 
one  tenant  in  common  claim  them,  who,  without  leave  or  objection 
from  the  others,  occupied  the  land  exclusively,  and  sowed  it;  partition 
having  been  made  while  the  grain  was  growing.  He  is  neither  a 
tenant  for  life  nor  at  will,  and  acted  with  the  knowledge  that  the  laud 
was  at  any  time  subject  to  partition.(7) 

52.  At  common  law,  a  dowress  was  not  entitled  to  emblements,  the 
land  being  often  sown  when  she  came  into  possession  of  it,  after  the 
husband's°death.  But  by  Statute  of  Aletton,  20  Hen.  3,  ch.  2,  she 
may  devise  the  growing  corn  ;  and  if  she  does  not,  it  passes  to  her 
executors.(8)  In  New  Jersey,  South  Carolina,  North  Carolina,  Rhode 
Island,  Virginia,  Kentucky,  it  is  provided,  that  widows  may  bequeath 
their  crops.(&)(9) 

53.  Tenant  for  years  is  not,  in  general,  entitled  to  emblements, 
whether  the  lease  is  upon  a  pecuniary  rent  or  upon  shares ;  because, 
knowing  the  determination  of  his  estate,  it  is  his  own  folly  to  sow, 
where  he  knows  he  cannot  reap.(c)  This  being  the  reason  of  the  rule, 
it  is  not  applicable,  where  such  estate  is  terminated  by  an  event  pre- 
viously uncertain.  Thus,  if  the  tenant  for  years  holds  under  a  tenant 
for  life,  and  the  estate  terminates  by  the  death  of  the  latter,  the  former 


(1)  Co.  Litt.  55,  b. ;  Com.  Dig.  Biens  G.  2. 
Hawkins  V.  Skegg,  10  Humph.  31;  Davis  f. 
Eyton.  1  Bingh.  154. 

(2)  Bulwer  v.  Buhver,  2  B.  &  A.  470. 

(3)  Haslett  V.  Glen,  7  Har.  &  J.  17  ;  Thomp- 
son V.  Thompson,  6  Munf.  518. 

(4)  Hob.  133. 


(5)  Gee  v.  Young,  1  Hay,  17, 

(6)  Stewart  v.  Doughty,  9  John,  112. 

(7)  Cro.  Eliz.  61 ;  Calhoun  v.  Curtis,  4  Met. 
413. 

(8)  1  Cruise,  130. 

(9)  Anth.  Shep.  255,  564 ;  N.  C.  Rev.  St. 
615 ;   1  Vir.  Rev.  C.  171 ;  1  Ky.  Rev.  L.  575. 


(a)  But  if  a  parson,  having  sowed  the  parsonage  land,  sells  the  growing  crop,  and  then 
dissolves  his  connection  with  the  church,  and  leaves  the  land  before  harvest;  tlie  purchaser 
cannot  maintain  trover  against  one  wlio  carries  away  the  crop,  although  the  officers  of  the 
church  disclaim  all  title  to  it.     Debow  v.  Colfax,  5  Halst.  128.  . 

(h)  In  Pennsylvania,  any  tenant  for  life  may  bequeath  them  as  personalty.  Park  &  J. 
467.  If,  before  assignment  of  dower  in  certain  land,  the  heirs  sow  such  land ;  after  assign- 
ment, but  before  acceptance  of  the  commissioners'  report,  which,  however,  is  subsequently 
accepted,  the  widow  may  cut  and  carry  away  the  crops.     Parker  v.  Parker,  17  Pick.  236. 

In  Arkansas,  the  widow  may  bequeath  her  crop;  if  she  does  not,  it  passes  to  her  admin- 
istrator.    Rev.  St.  342. 

(c)  Upon  the  same  principle,  where  one  occupies  by  a  pre-emption  right,  and  sows  the 
land,  knowing  that  the  crop  cannot  ripen  before  such  right  will  terminate,  a  purchaser  from 
government  will  hold  the  crop.     Rasor  v  Quails,  4  Blackf  288. 


CHAP.  L]  REAL  PROPERTY  IN  GENERAL.  15 

shall  have  emblements.  So,  also,  Avherc  one  liolds  for  so  many  years, 
if  A  live  so  long,  and  A  dies  before  the  end  of  the  time  ;  the  former 
has  emblemei)ts.(l)  But  Avhcre  a  woman,  tenant  during  widowhood, 
leases  for  years  and  marries,  the  lessee  for  years  has  ijO-t;niblcments.(2) 
58  a.  Where  a  father  conveyed  a  farm  to  his  son,  but  continued  to 
occupy  it  himself  until  his  death,  and  worked  it  jointly  with  his  son, 
each  contributing  a  certain  number  of  negroes  ;  held,  the  corn  and  fod- 
der growing  thereon  at  the  death  of  the  father  belonged  to  his  estate, 
and  passed  to  his  administrator;  the  son  being  entitled  to  retain,  if 
anything,  no  more  than  his  share  of  the  crop.(3) 

54.  Where  the  tenant  terminates  the  estate  by  his  own  act — as  by 
forfeiture — he  has  no  emblements.  So,  where  he  surrenders  his 
lease,(4) 

55.  A  lessor  agreed  to  renew  the  lease,  "  if  he  did  not  want  the  farm 
for  his  own  use."  Before  its  expiration,  the  tenant  surrendered,  having 
previously  sold  the  growing  crop  to  a  stranger.  Held,  the  landlord  was 
entitled  to  the  crop.(5) 

55  a.  A  leased  a  farm  to  B  at  an  advance  rent,  for  a  specified  time 
giving  the  lessee  the  right  to  go  upon  the  premises  and  harvest  and 
take  away  his  crops,  after  the  determination  of  the  lease.  B  underlet 
to  various  persons,  some  of  whom  -were  to  pay  a  part  of  the  crop  as 
rent;  and  one  of  them  raised  a  crop  of  oats,  which  were  stacked  on  the 
premises  as  the  property  of  B,  after  he  had  surrendered  the  premises  to 
A.  During  the  following  spring,  A  threshed  and  sold  the  oats,  and  B 
sued  him  therefor  in  trespass.  Held,  the  action  could  be  maintained  ; 
that  A  had  no  claim  for  a  forfeiture;  and  that  his  remedj-  against  B 
was  on  the  covenants  of  the  lease.(6) 

56.  In  Pennsylvania,  a  tenant  for  years  is  by  custom  entitled  to  em- 
blements, under  the  name  of  a  ivay-growing  cro2).{a)  But  the  custom  is 
limited  to  leases  from  spring  to  spring,  vvhere  there  is  no  crop  in  the 
ground  at  the  commencement  of  the  lease.  And  where  A  leased  to  B 
for  five  years,  three  months'  notice  to  be  given  in  ease  of  a  sale  during 
the  term,  and  no  rent  to  be  paid  for  the  year,  and  there  was  a  winter 
crop  in  the  ground  at  the  time  of  leasing,  and  the  tenant,  after  a  sale 
by  the  lessor,  left  in  the  fall;  held,  he  was  entitled  to  emblements  at 
common  law,  notwithstanding  a  knowledge  or  even  direct  notice  of  the 
sale  three  months  before  leaving,  the  custom  of  a  way -going  crop  not 
being  applicable  to  this  case.(7) 


(1)  Co.  Lit.  55  b,  "Whitmarsh  v.  Cutting,  10 
Jolin.  3G1;  Demi  v.  Bos.slor,  1  Penns.  224; 
Davis  V.  Brocklebank,  9  N.  IL  73. 

(2)  Gland's  Case,  5  Rep.  IIG. 

(3)  McLaurin  v.  M'Call,  3  Strobb.  21. 

(4)  Co.  Lit.  55  b. 


(5)  Bain  v.  Clark,  10  John.  424. 

(6)  Van  Valkenburgh  v.  Peylon,  2  Gilm.  44. 

(7)  Stultz  V.  Dickey,  5  Bin.  289;  Biggs  v. 
Brown.  2  Ser.  A  R.  14  ;  Comfort  v.  Duncan,  1 
Miles,  229.  See  Faviell  v.  Gaskoin,  S  Eng.  L. 
&  Equ.  526. 


(a)  The  same  custom  is  said  to  prevail  in  New  Jersey  and  Delaware ;  applying,  however, 
in  all  these  States,  to  grain  sown  in  the  fall,  and  to  be  reaped  at  the  next  harvest.  I  U.  s'. 
Digest,  C97  ;  Biggs  v.  Brown,  2  S.  &  R.  14;  Van  Doren  v.  Everitt,  2  South.  4G0  ;  Temple- 
man  V.  Biddle,  1  Harring.  522.  If  a  lessor  injure  the  way-going  crop,  even  after  the  lease 
has  terminated,  and  the  tenant  quit  pos.session,  he  is  liable  to  an  action  of  trespass.  For- 
sythe  V.  Price,  8  Watts,  282.  This  crop  includes  straw.  Craig  v.  Dale,  1  W.  &  S.  509.  Id- 
dings  V.  Nagle,  2,  22.  A  like  custom  prevails,  and  is  enforced  by  the  courts,  in  some  parts 
of  England,  even  notwithstanding  a  written  contract,  in  which  such  custom  is  not  referred  to. 
Higglesworth  v.  Dallison,  Doug.  201;  Senior  i'.  Armitage,  Halst.  197.  But  see  Roberts  v. 
Barber,  1  Cr.  &  Mees.  208.    See  also,  Borastoa  v.  Green,  16  E.  7 1 ;  Beaty  v.  Gibbons,  ib.  116. 


16 


REAL  PROPERTY  IN  GENERAL. 


[CHAP.  I. 


57.  If  a  lessor  for  years  covenant  and  grant  to  the  lessee,  to  carry 
away  the  corn  which  shall  be  growing  at  the  end  of  the  term  ;  this  is 
not  a  mere  covenant,  nor  is  it  void  as  a  grant  infuluro  of  a  thing  not  in 
esse  ;  but  passes  the  property  when  it  comes  into  being.(l) 

58.  The  question  of  emblements,  though  usually  arising  between  land- 
lord and  tenant,  may  also  grow  out  of  other  relations  known  to  the 
law.  Thus,  where  one  is  forcibly  dispossessed  of  land  ;  after  recovering 
it  by  a  judgment,  he  is  entitled  to  the  crops  raised  by  the  trespasser  or 
disseizor,  though  gathered,  if  still  remaining  on  the  premises.(2) 

59.  If  one  in  possession  of  land,  under  a  judgment  recovered  upon  a 
writ  of  entry,  being  sued  in  a  writ  of  right,  pending  this  suit  sow  the 
land,  and  the  demandant  recover  judgment,  and  obtain  seizin  and  pos- 
session before  the  crops  are  gathered  ;  the  demandant  is  entitled  to  the 
crops.(3) 

59  a.  Upon  a  sale  on  execution,  the  sheriff  gave  a  deed  to  the  pur- 
chaser, while  grain  was  growing  on  the  land.  Afterwards,  a  creditor 
of  the  judgment-debtor  levied  on  the  grain  and  sold  it,  and  the  purcha- 
ser brings  an  action  against  the  tenant  of  the  sheriff's  grantee,  for  cut- 
ting and  removing  the  grain.  Held,  the  grain  passed  with  the  land, 
and  the  action  could  not  be  maintained. (4) 

59  6.  Where  one  leases  land  which  is  subject  to  a  judgment  against 
him,  and  the  land  is  afterwards  sold,  the  purchaser  will  be  entitled  to 
the  growing  crop,  and  not  the  ten  ant. (5) 

60.  A  mortgagee,  not  in  possession,  has  no  right  to  emblements. 
When  severed  by  the  mortgagor,  they  are  absolutely  his  without  any 
liability  to  account  for  them.(6) 

61.  Nor  is  the  lessee  of  a  mortgagor  entitled,  as  against  the  mortga- 
gee, to  the  crops  on  the  land  at  the  time  of  foreclosure  and  sale  ;  but  he 
is  liable  in  trespass  to  the  mortgagee  for  taking  them,  if  the  latter  pur- 
chase the  land.(7) 

61  a.  The  purchaser  of  mortgaged  premises,  sold  pursuant  to  a  statute 
foreclosure  in  New  York,  entered,  harvested,  and  carried  away  the 
crop.  In  an  action  of  trover  against  him,  by  one  who  had  purchased 
the  crop  before  the  foreclosure,  on  execution  against  the  mortgagor ; 
held,  the  defendant  was  entitled  to  the  crop.(8) 

62.  The  right  to  emblements  is  not  a  mere  personal  privilege,  inca- 
pable of  transfer;  but,  in  this  respect,  a  crop,  even  while  growing,  and 
unripe,  seems  to  stand  on  the  same  footing  with  any  other  property. 

63.  Thus,  a  growing  crop  may,  it  seems,  be  sold  by  a  tenant  before 
the  termination  of  his  estate,  and  the  vendee  will  have  the  right  to  en- 
ter and  gather  it,  after  such  termination. 

64.  So  an  execution  against  the  tenant  may  be  levied  upon  the  grow- 
ing crop.  And  it  was  held  in  New  York,  that  the  officer  might  levy 
the  execution  in  December,  making  a  declaration  to  that  effect,  and  de- 
lay to  sell  till  the  ensuing  August,  when  the  crop  became  ripe;  although 


(1)  Grantham  v.  Ilawley,  Wms.  Ilobart,  286. 

(2)  Thomes  v.   Moody,  2   Fairf.   139.     See 
Tyson  v.  Hollingswortli,  2  Bland,  334. 

(3)  King  V.  Fowler,  U  Pick.  238. 

(4)  Bear  v.  Bitzer,   16   Penn.   175.     See 
Grofifv.  Levaw,  ib.  179. 


(5)  Sallade  v.  James,  6  Barr,  144. 

(6)  Toby  V.  Reed,  9  Conn.  225. 

(7)  Lane  v    King,  8  Wend.  534;   Crews  v. 
Pendleton,  1  Leigh,  297;   1  Bland,  76. 

(8)  Shepard  v.  Pliilbrick,  2  Denio,  174. 


CHAP.  I.] 


REAL  PROPERTY  IN  GENERAL. 


17 


it  might  legally  be  sold  at  the  former  ]3eriod.     He  took  all  the  joosses- 
sion,  that  was  practicable  in  the  case.(l)(a) 

65.  The  right  to  emblements  involves  the  right  of  removing  them 
from  the  land;  and  therefore  the  tenant  is  allowed  axeasbnable  time 
for  this  purpose,  during  which  the  reversioner  or  remainder-man  cannot 
lawful!}''  enter  and  occupy. (2) 

66.  in  several  of  the  States,  the  subject  of  emblements  is  to  some  ex- 
tent regulated  by  the  statute  law. 

67.  In  Maryland,  "  the  crop  on  the  land  of  the  deceased,  by  him  or 
her  begun,"  is  made  assets  in  the  hands  of  the  executor,  &;c.  So  in 
South  Carolina(6)  and  Virginia.  So  in  Illinois,  the  executor  is  empow- 
ered to  sell  the  growing  crop.(3) 

68.  The  same  provision  is  made  in  New  York,  with  regard  to  grow- 
ing crops,  and  all  produce  raised  annually  by  labor  and  cultivation, 
except  growing  grass  and  fruit  not  gathered.(-i) 

69.  In  Virginia,  South  Carolina  and  Kentucky,  as  an  incident  to 
right  of  emblements,  the  slaves  of  a  person  deceased,  though  held 
by  him  only  for  life,  shall  be  continued  on  the  land  from  March  1st 
to  December  1st;  and,  in  Virginia  and  Kentucky,  as  a  compensation 
for  their  services,  the  executor  or  administrator  shall  deliver  to  the  re- 
versioner or  remainder-man  three  barrels  of  Indian  corn  for  every  slave. 
In  all  the  three  States  above  named,  a  crop  does  not  pass  as  emble- 
ments, if  the  tenant  die  between  December  1st  and  the  first  of  March 
following,  or  if  not  gathered  before  the  former  period.  In  Ohio  there 
are  no  emblements,  unless  he  die  between  March  1st  and  December  1st 
following.(5)(c) 

70.  Sometimes,  where  substances  in  their  nature  movable  are 
thrown  upon  a  man's  land,  they  become  his  property,  as  part  of  the 
land. 

71.  Thus,  sea-weed,  thrown  upon  the  sea-shore,  belongs  to  the  owner 
of  the  shore ;  because  it  increases,  not  suddenly  but  gradually ;  is  useful 


(1)  Whipple  V.  Foot,  2  John.  418. 

(2)  Bevans  v.  Briscoe,  4  Harr.  &  .J.  139. 

(3)  Anth.  Shep.  428,  489,  575;  Illin.  Rev. 
L.  G42. 


(4)  2  N.  Y.  Rev.  St.  83. 

(5)  Anth.  Shep.  489.  575,  653-4;  "Walk. 
Intro.  277  ;  Green  v.  Cartright,  Wriglit,  788. 
See  Vir.  Code,  573. 


(a)  In  Ohio,  where  lands  are  valued  for  judicial  sale,  the  annual  crops  are  not  included  in 
the  estimate.     Cassily  v.  Rhodes,  12  Ohio,  95. 

(b)  By  a  marriage  settlement,  tlie  husband  was  to  have  the  use  and  occupation  of  the 
wife's  land  and  the  proceeds  of  the  real  and  personal  estate  during  their  joint  lives,  and,  in 
case  of  her  death,  living  the  husband,  leaving  issue,  the  property  to  bo  divided,  according 
to  law,  between  the  husband  and  issue,  the  legal  title  to  remain,  in  the  mean  time,  in  her 
trustee.  The  wife  died  in  February,  leaving  a  daugliter,  her  only  issue,  and  the  husband  in 
July  of  the  same  year,  having  devised  and  bequeathed  to  the  daughter  all  the  property  of 
which  his  wife  was  possessed  at  the  time  of  tiie  marriage,  and  directing  that  she  should  be 
suitably  maintained  out  of  the  proceeds.  In  the  spring  of  that  year,  the  husband  planted 
a  crop  witli  his  own  slaves  and  those  of  the  trust  estate.  Held,  under  the  statute  of  South 
Carolina,  (5  Cooper,  111,  §  23,)  the  executor  was  entitled  to  tlie  crop  severed  before  the 
last  day  of  December  of  the  year  of  the  testator's  death,  charged  with  the  maintenance 
and  education  of  the  daughter,  and  the  hire  of  her  slaves.  Gage  v.  Rogers,  1  Strobh. 
Equ   370. 

(c)  This  must  be  the  meaning  of  the  language,  "  if  the  tenant  die  between  the  first  of 
March  and  the  last  of  December,  they  go  to  the  personal  representatives;  otherwise  to  the 
real."     See  Shelton  v.  Shelton,  1  Wash.  53;  Thompson  v.  Thompson,  6  Munf.  514. 


Vol.  I. 


18 


REAL  PROPERTY  IN  GENERAL. 


[CHAP.  L 


as  manure  and  a  protection  to  the  bank;  and  is  also  some  compensation 
for  the  encroachments  of  the  sea  upon  the  land.(l) 

72,  The  same  is  true  with  regard  to  loreck,  as  against  all  the  world 
but  the  former  owner.(2)  So,  where  wood  and  timber  floats  in  the  water 
covering  a  man's  land,  he  has  the  exclusive  right  to  seize  it,  and  retain 
it  till  claimed  bj  the  owner  in  reasonable  tirne.(3)(a)  But  the  lessor  of 
a  farm,  lying  upon  the  bank  of  a  river,  cannot  bring  replevin  for  drift- 
wood taken  from  the  river  and  piled  up  on  the  farm  by  the  lessee,  as 
he  has  no  property  in  such  wood,  unless  there  be  some  provision  in  the 
lease  giving  him  a  right  to  it.(4) 

I'i.  It  has  been  held  that  dung  in  a  heap  is  personal  propert}" ;  but 
when  spread,  becomes  part  of  the  land,  because  it  cannot  well  be  gath- 
ered without  gathering  part  of  the  soil  also.(5)  A  late  case  in  New 
Hampshire  decides  that  manure,  made  in  the  ordinary  course  on  the 
land,  passes  by  a  conveyance  of  the  land,  unless  expressly  reserved — 
whether  lying  in  a  field,  yard,  in  heaps  at  the  windows,  or  under 
cover.(6) 

73  a.  Gravel,  unlawfull}-  removed  from  a  close,  and  sold,  becomes 
personal  property,  b}*  the  severance ;  and  trover  lies  in  favor  of  the 
owner  of  the  close  against  the  purchaser,  who  used  the  gravel  for  filling 
up  other  land, (7) 

74.  In  this  connection,  may  properl}^  be  considered  the  subject  of 
jixtures{h) — one  of  sufficient  extent  and  importance  to  be  discussed,  as 
it  has  been  with  much  ability,  in  a  distinct  elementary  treatise,(c)  and 
upon  which  vQvy  numerous  decisions  and  nice  distinctions  are  to  be 
found  iij  the  books. 

75.  The  law  of  fixtures  relates  to  those  cases,  where  a  thing  affixed 
to  land,  and,  until  removed,  constituting  a  part  of  the  freehold,  is  taken 


(1)  Phillips  V.  Rhodes,  7  Met.  323;  Emans 
V.  TurnbuU,  2  John,  313 ;  1  U.  S.  Dig.  141; 
N.  H.  Rev.  St.  237-8;  Keuyon  v.  Nichols, 
1  R.  L  106;  See  9  Conn.  38. 

(2)  Barker  v.  Bates,  13  Pick.  255. 

(3)  Rogers  v.  Judel,  5  Verm.  223. 

(4)  Dyer  V.  Haley,  29  Maine,  277. 


(5)  Tearworth  v.  Pierce,  AUeyn,  31.  See 
Daniels  v.  Pond,  21  Pick.  367;  infra,  Estate 
at  Will.  Law  Reporter,  Jan.  1854,  481; 
Roberts  v.  Barber,  1  Cr.  &  Mees.  208. 

(6)  Conner  r.  Coffin,  2  Fost.  538. 

(7)  Riley  v.  Dalrymple,  Mass.  S.  J.  C.  Mar. 
1853  ;  Law  Rep.  May,  1853,  p.  41. 


(a)  In  Massachusetts,  the  owner  of  timber,  which  floats  from  any  water  upon  another's  ad- 
joining land,  may  remove  it  within  eighteen  months,  paying  all  damages  of  removal.  After 
this  period,  it  becomes  the  propertv  of  the  latter.  Rev.  Stat.  389.  In  Wisconsin,  one  year. 
Rev.  St.  249.     See  N.  H.  Rev.  St.'  259. 

The  owner  of  land  upon  which  property  is  stranded  cannot  appropriate  it  to  his  own  use, 
though  he  may  castit  back  into  the  stream,  after  the  owner  has  been  notified  and  neglected 
to  remove  it.  Fosters.  Juniata,  &c.  16  Penn.  393,  The  owner  of  the  property  may  enter 
on  the  land  to  remove  it,  but  is  not  bound  to  do  so,  and  incurs  no  liability  for  injury  done  by 
it ;  even,  it  seems,  after  notice  to  remove  it,  unless  guilty  of  negligence  in  the  management 
of  it.    lb. 

(&)  There  seems  to  be  a  prevailing  inaccuracy  or  uncertainty  in  the  application  of  this 
term,  similar  to  that  which  will  hereafter  be  noticed  in  the  use  of  the  word  waste.  (See 
Waste.)  As  the  latter  word  sometimes  signifies  merely  the  destruction,  and  sometimes  the 
unlawful  destruction,  of  tilings  pertaining  to  the  inheritance :  so  the  word  fixture  is  indis- 
criminately used,  to  denote  merely  something  a^a;e(i  to  thefreehold,  whether  lawfully  remova- 
ble or  not;  and  something  which,  by  the  very  force  of  the  term,  is  always  to  remain  affixed, 
and  can  never  be  lawfully  taken  away  by  one  not  the  owner  of  the  freehold.  Chancellor 
Kent  considers  the  proper  definition  of  fixtures  to  be,  "  things  fixed  in  a  greater  or  less  de- 
gree to  the  realty."  Comm.  2,  344,  n.  A  recent  definition  is,  "  the  right  of  severance  of 
chattels  attached  to  the  soil,  and  not  part  of  the  freehold."  Horsfall  v.  Key,  17  L.  J.  Exch. 
266.     SeeTeafff.  Hewitt,  1  McCook,  511. 

(c)  See  Amos  and  Ferard,  on  the  Law  of  Fixtures. 


CHAR  I.]  REAL  PROPERTY  IN  GENERAL.  1^ 

away  by  some  party  not  the  owner  of  the  land,  as  a  chattel  belonging 
to  him.  This  class  of  cases,  though  analagous  to  those  already  con- 
sidered, in  which  one  man  erects  buildings  upon  the  land  of  another  by 
special  permission  or  contract,  differs  from  the  latter  iu  two  important 
particulars.  In  the  first  place,  in  the  case  of  fixtures,  there  is  ordiua- 
ril}''  no  express  permission  or  contract  for  their  erection  ;(1)  and,  in  the 
second  place,  until  removed,  they  are  ^  part  of  the  freehold ;  while,  in  the 
other  case,  the  thing  attached  to  the  land  is  from  its  first  creation  a  mere 
chattel,  and  no  part  of  the  freehold.  The  latter  part  of  this  distinction 
seems  to  be  opposed  by  some  dicta,(2)  which  speak  of  fixtures  as  chattels 
or  personal  property,  and  as  being  "  deemed  personalty  for  many  other 
purposes."  Thus,  as  will  be  seen,  they  are  liable  to  betaken  on  execu- 
tion as  personal  property.  Mr.  Amos,(3)  however,  is  of  opinion,  that  by 
annexation  they  become  a  part  of  the  freehold,  and  re-assume  their 
character  of  chattels,  only  upon  removal.  This  seems  to  be  clearly 
laid  down  in  the  case  of  Lee  v.  Bidon.{4:)  It  is  there  remarked,  that 
the  stealing  of  such  articles  would  not  be  felony.  So,  as  will  be  seen 
hereafter,  a  mortgagor  may  reftiain  in  possession  of  them,  without  ren- 
dering the  transfer  fraudulent.  So  they  are  not  distrainaUe  till  perma- 
nently separated ;  and  it  has  been  questioned  whether  replevin  will  lie 
for  them,  even  when  separated  from  the  land. (5)(a) 

76.  It  is  said  that  to  constitute  a  fixture,  that  is,  to  give  a  chattel  any- 
thing of  the  character  of  real  estate,  so  as  to  justify  a  question  in  re- 
gard to  it,  there  must  be  a  complete  annexation  to  the  soil.{6)  Thus,  a 
building  upon  blocks,  rollers,  stilts  or  pillars  ;  or  a  varnish-house  upon 
a  wooden  plate  resting  on  brick  work,  the  quarters  being  morticed  into 
the  plate  ;  or  a  wooden  barn,  upon  a  brick  ^nd  stone  foundation  ;  or  a 
stove,  in  a  house  without  fire-place  or  chimney,  except  from  the  cham- 
ber floor,  the  pipe  of  which  passes  into  the  lower  end  of  the  chimney ; 
or  a  post  wind-mill,  laid  on  cross  traces  not  attached  to  the  ground  ;  or 


(1)  White  V.  Arndt,  1  "Whart.  95. 

(2)  2  Browne,  285  ;  Van  Ness  v.  Pacard,  2 
Pet.  144;  3  Kent  (5th  ed.)  340,  n. 

(3)  Amos,  9,  10,  814.  See  Horsfall  v.  Key, 
2  Wels.  H.  &  a,  778. 

(4)  7  Taun.  190. 

(6)  Reynolds  u.  Sherler,  5  Cow.  323 ;  Vansce 
V.  Russell,  2  M'C.  329 ;  Powell  v.  Smith,  2 
Watts,  126. 

(6)  Amos,  5,  274,  et  seq. ;  'Wansbrough  v. 


Maton,  4  Ad.  &  El.  884 ;  Freeland  v.  South- 
worth,  24  Wend.  191 ;  Despatch,  &c.  v.  Bel- 
lamy, &c.  12  N.  11.  205;  Teafi"  v.  Hewitt,  1 
M'Cook,  (Ohio,)  541.  (This  very  recent  case 
contains  a  learned  and  elaborate  examinatiou 
of  the  law  of  fixtures,  in  some  of  its  most  im- 
portant aspects.)  Rcgina  r.  Ilaslam,  G  Eng.  L. 
&  Eq.  321 ;  Vanderpoel  v.  Van  Allen,  10  Barb. 
157;  Lawrence  v.  Kemp,  1  Duer,  363 ;  2  Harr. 
Dig.  (Suppl.)  1686;  Wood  v.  Hewett,  lb.  688. 


(a)  But  the  tenant  has  an  interest,  not  a  mere  power,  as  in  case  of  a  lease,  without  impeach- 
ment of  waste.  (See  Poole's  case,  infra.  66,  n.  3 ;  also,  Davis  v.  Banks,  16  L.  J.  Exch.  213.) 
A  party  cannot  avail  himself  of  his  own  wrong  in  interfering  with  fixtures,  to  deny  that 
they  are  part  of  the  realty.  Thus,  if  the  landlord  distrains  them,  and  afterwards  severs  and 
removes  them  for  sale,  and  the  tenant  brings  trover,  the  defendant  cannot  defend  on  the 
ground  that  the  plaintiff,  by  bringing  this  suit,  has  treated  them  as  chattels,  and  therefore  dis- 
trainable.  Dalton  v.  Whithem,  3  Gale  &  Dav.  260.  See  Clark  v.  Holdford,  2  C.  &  K.  540. 
A  fixture,  when  lawfully  severed,  becomes  personal  property,  and  may  bo  sued  for  in  re- 
plevin. Ilcaton  V.  Findlay,  12  Penn.  304;  Haslaw  v.  Haslaw,  15  lb.  507.  The  owner  of 
land  sold  a  fixture  thereon  to  A,  which  was  temporarily  severed.  He  then  sold  the  land 
to  B,  with  notice  of  the  previous  sale.  The  fixture  was  never  delivered,  and  was  soon  re- 
annexed,  and  continued  to  bo  used.  At  the  time  of  sale  of  the  fixture,  there  was  a  judg- 
ment against  the  owner  of  the  land,  constituting  a  lien  upon  it,  under  which  the  land  was 
sold  to  the  owner's  grantee.  Held,  he  thereby  gained  a  title  to  the  fixture,  notwith- 
standing his  knowledge  of  the  previous  sale,  and  his  admissions  that  the  fixture  belonged 
to  A.     lb. 


20 


REAL  PROPERTY  IN  GENERAL. 


[CHAP.  1. 


on  a  sliding  fender,  to  prevent  the  escape  of  water  from  a  mill-stream ; 
or  loose,  movable  machinery,  used  in  prosecuting  some  business,  and 
fastened  to  the  building  by  belts  and  bands,  or  by  cleats  tacked  to  the 
floor,  and  movable  without  injury  to  the  building ;  or  a  door,  which 
may  be  lifted  from  its  hinges ;  is  not  a  fixture,  but  a  mere  chattel.  So, 
gas  fixtures  and  sittii:g  stools,  placed  by  a  tenant  in  a  shop  or  store, 
though  fastened.  So,  machinerj^  erected  for  manufacturing  purposes, 
on  timbers  imbedded  in  the  ground,  or  fastened  to  the  timbers  of  a 
building  by  bolts,  screws,  pins  or  cleats,  if  put  up  with  a  view  to  its 
being  removed  without  injury  to  the  building,  is  not  a  fixture,  passing 
Avith  a  freehold  on  a  sale  of  the  latter.(l)  So,  a  pump  and  pipe,  bal- 
ances and  scales,  and  beer-pumps,  are  prima  facie  personal  property  ; 
and  whether  they  are  fixtures,  depends,  in  New  York,  upon  the  point 
whether  they  are  annexed  to  the  freehold  within  the  meaning  of  the 
statute,  (Eev.  Sts.  83.)(2)  But  sheds  built  upon  posts,  by  a  tenant,  for 
the  purpose  of  making  brick,  are  fixtures.(3) 

77.  Whether  an  article  is  a  fixture,  is  partly  a  question  of  fact  and 
partly  of  law.  Every  case  must  depend  "mainly  on  its  own  circumstan- 
ces. (4) 

78.  Several  general  considerations  are  of  importance,  in  settling 
whether  a  thing  annexed  to  the  freehold  can  lawfully  be  removed.  These 
are,  the  nature  of  the  thing,  whether  in  itself  a  personal  chattel  or  not ; 
usage  ;  the  comparative  value  of  the  land  before  and  after  the  removal ; 
the  injury  which  would  be  caused  by  removal,  in  regard  to  which  it  is 
said,  "the  principal  thing  shall  not  be  destroyed  by  taking  away  the 
accessary  ;"  the  situation  and  business  of  the  tenant ;  but  chiefly  the  pur- 
pose and  object  of  the  erection,  whether  for  trade,  agricQlture,  ornament, 
or  general  improvement  of  the  estate.(5)(a) 

79.  It  is  the  general  rule  of  the  common  law, (6)  that  whatever  is  once 
annexed  to  the  freehold  becomes  a  part  of  it,  and  therefore  cannot  be 
removed  by  the  party  making  the  annexation,  who  is  not  the  owner 
of  the  land. (6)  It  will  be  seen,  that  the  former  part  of  this  proposition  is 
chiefly  important,  as  involving  the  consequence  stated  in  the  latter  part. 
For,  if  the  owner  of  the  land  himself  make  annexations  to  it,  so  long  as 
he  continues  to  be  the  owner,  he  has  the  absolute  control,  both  of  the 
land  and  of  what  is  affixed  to  it.     In  regard  to  him,  therefore,  it  is  of 


(1)  Farmer  v.  Chaufette,  5 Denio,  527. 

(2)  lloreyv.  Smith,  1  Barb.  372. 

(3)  Beckwith  v.  Boj-oe,  9  Miss.  560. 

(4)  Steward  v.  Lombe,  1  Brod,  &  B.  510. 

(5)  Amos,  7 ;  Van  Noss  v.  Pacard,  2  Pet. 
148  ;  Lawton  v.  Lawton,  3  Atk.  15  ;  Wether- 
by  V.  Poster,  5  Yerm.  136 ;  Trappes  v.  Harter, 


3  Tyrwh.  603;  Buckland  v.  Butterfield,  2 
Brod,  &  B.  54  ;  Davis  v.  Jones,  2  B.  &  A.  166  ; 
TeafFv.  Hewitt,  1  McCook,  511. 

(6)  2  Pet.  144  ;  Hubbard  v.  Bagshaw,  4 
Sim.  338;  Leland  ■;;.  C4assett,  2  "Washb.  403; 
Buckley  v.  Buckley,  11  Barb.  43 ;  English  v. 
Foote,  8  S.  &  M.  444. 


(a)  The  rule,  that  objects  must  be  actually  and  firmly  affixed  to  the  freehold,  to  become 
realty,  or  ollierwise,  to  be  considered  personalty,  is  far  from  constituting- a  criterion.  Doors, 
window-blinds  and  shutters,  removable  without  damage,  and  eveu  though,  at  the  time  of  a 
conveyance  or  attachment,  actually  detached,  are,  it  seems,  part  of  the  house,  and  pass  with 
it.  So,  it  seems,  mirrors,  wardrobes  and  other  heavy  furniture,  though  firmly  screwed  to 
the  walls,  are  chattels.  Per  Shaw,  Ch.  J.,  Winslow  v.  Merchants',  &c.  4  Met.  314.  In  case 
of  a  partition  between  tenants  in  common  of  a  woolen  factory,  machinery,  not  affixed  or  fas- 
tened to  the  land  or  building,  has  been  held  to  be  personal  property.  Walker  v.  Sherman, 
20  Wend.  636.  A  mortgagor  commenced  a  building,  designed  for  a  dwelling-house,  and  to 
remain  on  the  land;  also,  a  smaller  one,  upon  posts  fixed  in  the  ground,  intended  to  be  oc- 
cupied till  completion  of  the  former.     Held,  these  were  fixtures.     Butler  v.  Page,  7  Met.  40. 

(b)  Quicquid plantatur  solo,  solo  cedit. 


CHAR  L] 


REAL  PROrERTY  IN  GENERAL. 


21 


little  jjraclical  consequence,  wlictlier  the  annexations  become  a  part  of 
tLe  freehold  or  not.  In  some  of  the  States,  liowever,  tlie  statute  law- 
has  assumed  to  settle  this  particular  question.  Tiius,  in  Connecticut,(l) 
it  is  j^rovided  that  the  machinery  in  a  cotton  or  "^woolen  factory, 
may  be  mortgaged,  either  with  or  without  the  building,  as  if  it  were 
real  estate.  So,  while  it  may  be  attached  like  real  estate,  it  is  sold  on 
execution  as  personal.  But  in  Rhode  Island, (2)  the  main  water-wheels, 
upright  and  horizontal  shafts,  drums,  pullies  and  wheels  secured  to  the 
building,  and  necessary  for  operating  the  machinery,  and  all  kettles  set, 
are  declared  to  be  real  estate,  while  other  parts  are  personal. (a) 

80.  By  the  ancient  law,  it  seems,  even  a  tenant  had  no  right  to  re- 
move things  once  attached  to  the  freehold  ;  as,  for  instance,  windows, 
wainscot,  benches,  &c.(3)  Poolers  case(4)  first  definitively  settled  a  dif- 
ferent principle,  in  regard  to  erections  for  trade^  although  this  excep- 
tion is  said  to  be  almost  as  old  as  the  rule  itself.  In  a  very  ancient 
case  it  is  referred  to  by  the  phrase,  pur  occupier  son  occupations — "  to 
occupy  his  occupation. "(5) 

81.  The  general  distinction  upon  the  subject  is  this :  that  Avhere  a 
thing  is  accessary  to  anything  of  a  personal  nature,  such  as  trade,  it  is 
a  chattel ;  but  where  a  necessaiy  accessary  to  the  enjoyment  of  the  in- 
heritance, it  is  a  part  of  the  inheritance.(6) 

82.  In  a  leading  case(7)  upon  this  subject  it  is  said,  (though  not,  as 
will  be  presently  seen,  with  perfect  accuracy,)  that  questions  as  to  fix- 
tures arise  in  three  cascs.(8)  1.  Between  heir  and  executor.  That  is, 
when  the  owner  of  real  estate  dies,  the  question  is,  whether  things  at- 
tached to  the  land  shall  pass  with  or  as  a  part  of  it,  to  the  heir,  or  as  per- 
sonal property,  to  the  executor.  In  this  country,  this  branch  of  the 
subject  is  comparatively  of  little  consequence,  because  the  personal  and 
real  property  of  one  deceased  is  ordinarily  subject  to  preeiselv  the  same 
appropriation,  either  for  the  benefit  of  creditors  or  the  next  of  kin.(&) 


(1)  Conn.  L.  67-8. 

(2)  R.  L  L.  205. 

(3)  Co.  Lit.  53  a;  White  v.  Arndt,  1  Whart. 
93;  Amos,  22. 

(4)  1  Salk.  368. 

(5)  Van  Nees  v.  Pacard,  2  Pet.  144-5  -20 


Hen.  T,  13  a  &  b. 

(6)  Hunti'.  Mullanphy,  1  Misso.  508  ;  Olym- 
pic, &c.  2  Browne,  285. 

(7)  Elwes  V.  Maw.  3  E.  38. 

(8)  1  Whart.  93. 


(a)  In  Delaware,  real  fixtures,  such  as  steam  engines,  &c.,  placed  on  the  premises  by  the 
owner,  and  attached  to  the  freehold,  as  a  fixed  establishment,  are  a  part  of  the  freehold, 
subject  to  real  estate  liens,  and  not  liablo  to  be  seized  as  chattels.  Rice  v.  Adams,  4  Ear- 
ring. 332.  In  Massachusetts  and  Michigan,  for  the  purposes  of  taxation,  real  estate  includes 
all  buildings  and  other  things  erected  on,  or  affixed  to  lands.  Mass.  Rev.  St.  75,  Mich.  St. 
1843,  GO.  By  a  statute  in  Massachusetts,  all  machinery  used  in  mauufiicturiug  is  taxed 
like  real  estate,  in  the  place  where  it  is  situated.  Mass.  St.  1837,  20-1.  In  Vermont,  ma- 
chinery in  a  woolen  factory  is  held  to  bo  personal  property,  and,  if  mortgaged  with  or  with- 
out the  realty,  the  mortgagee  must  take  possession  to  acquire  a  title  against  creditors.  Stur- 
gis  V.  AVarren,  11  Verm.  433.  To  convey  that.which  forms  part  of  the  realty,  but  by 
severance  may  become  a  chattel,  with  cflfect  against  tliose  not  excepted  in  the  statute,  tho 
same  formalities  are  necessary  as  in  a  conveyance  of  tho  land,  unless  a  severance  is  first 
made.     Trull  v.  Fuller,  23  Maine,  545. 

{h)  In  Maryland,  articles  which  can  be  removed  without  injury  to  the  premises,  are  made 
assets  in  the  hands  of  the  executor,  &c.  Anth.  Shep.  428.  In  New  York,  things  annexed 
to  the  freehold  or  to  any  building,  for  the  purpese  of  trade  or  manufacture,  and  not  fixed 
into  the  wall  of  a  house,  so  as  to  bo  essential  to  its  support.  2  N.  Y.  Rev.  St.  S3.  All  the 
erections  connected  with  a  mill  or  factory,  carried  by  water-power,  including  the  dams, 
water-wheels  and  gearing,  and  machinery  fastened  to  the  ground  or  buildings,  are  imma 
/acze  part  of  the  realty,  and  pass  to  the  heirs.  Buckley  v.  Buckley,  11  Barb.  43.  So,  they 
belong  to  tho  remainder-man,  after  the  death  of  tenant  for  life.  lb.  Ace.  Fisher  v.  Dixon,  1 
CI.  &  Fin.  312. 


22 


REAL  PROPERTY  IN  GENERAL. 


[CHAP.  I. 


As  between  heir  and  executor,  the  law  is  strict  in  favor  of  the  former, 
but  still  allows  erections /or  trade  to  be  removed.  2.  Between  the  ex- 
ecutor of  a  tenant  for  life,  and  the  remainder-man  or  reversioner.  Here 
the  law  is  liberal,  in  allowing  the  former  to  remove  the  tenant's 
own  erections.(a)  3.  Between  landlord  and  tenant.  And  here,  in 
modern  times,  the  tenant  is  highly  favored  by  the  law,  in  regard  to 
the  right  of  removing  fixtures  ;(i)  particularly  such  as  pertain  to  trade 
and  manufactures,  which  are  said  to  be  mdXiQTS  of  a  personal  nature,  and 
the  former  of  which  has  been  called,  in  England,  the  pillar  of  the  State. 
The  general  modern  rule  is,  that  the  tenant  may  remove  anything 
erected  by  him,  which  can  be  removed  without  injury  to  the  prem- 
ises, or  putting  them  in  a  worse  plight  than  they  were  in  when  he  en- 
tered. Whether  this  can  be  done  is  a  question  for  the  jury.  If  the 
erection  taken  down  is  substituted  for  another,  the  latter  must  be  re- 
stored or  replaced.  (1) 

83.  As  a  general  summary  of  the  law  of  fixtures  in  reference  to  land- 
lord and  tenant,  it  is  said, (2)  that  a  tenant  may  remove;  1.  Implements 
of  trade  ;(IS)  as,  for  instance,  furnaces,  or  the  vats  and  coppers  of  a  soap- 
boiler ;  or  a  kettle  or  boiler  in  a  tannery,  put  up  with  brick  and  mor- 
tar ;  or  stills  set  up  in  furnaces,  for  making  whiskey ;  or  a  hydraulic 
press  let  into  the  ground,  and  walled  up  with  solid  masonry,  and 
wooden  parts  of  it  nailed  to  the  building,  the  same  being  necessary  to 
the  business  for  which  the  building  is  occupied.(c)  2.  Machinery ;  as  a 
steam  engine  or  a  pump,  if  removable  without  injury  to  the  freehold  ;  or 
a  post  windmill,  or  machinery  for  spinning  and  carding,  though  nailed 
to  the  floor.((i)  3.  Buildings  for  trade ;  in  regard  to  these,  if  permanently 
built,  the  right  of  removal  seems  questionable  in  England,  but  is  well 
established  in  this  country.  The  question  is  not  as  to  the  size,  form,  or 
mode  of  erection  of  a  building ;  but  whether  it  is  for  trade.  And  it 
matters  not,  though  the  trade  be  of  an  agricultural  nature  ;  nor  though 
the  building  be  in  part  constructed  from  the  materials  of  an  old  one  stand- 


(1)  2  Kent,  280 ;  Whiting  v.  Brastov?-,  4 
Pick.  310:  Penton  v.  Robart,  2  East,  90;  6 
Jolm.  5 ;  2  Browne,  285 ;  Gaffield  v.  Hap- 
goocT,  17  Pick.  192  ;  Winslow  v.  Merchants', 
&c.  4  Met.  310  ;  Coombs  v.  Jordan,  3  Bland, 
311 ;  2  Washb.  403 :  Avery  v.  Cheslyn,  5  Nev. 
&  M.  373 ;  Foley  v.  Addenbrooke,  13  Mees.  & 
W.  197. 

(2)  Amos,  274,  etseq. ;  Hunt  v.  Mullanphy, 


1  Mlsso.  508  ;  Bark  v.  Baxter,  3  ib.  207  ; 
Grymes  v.  Boweren,  4  Moo.  &  P.  143 ;  the 

King  V.  Londonthorpe,  6  T.  R.  377  ;  

V.  Otley,  1  Barn.  &  Ad.  161;  Cresson  v. 
Stout,  17  John.  116  ;  Tobias  v.  Frances,  3 
Verm.  425  ;  Talfe  v.  Warnick,  3  Black f.  Ill ; 
Leniar  v.  Miles,  4  Watts,  330 ;  Cross  v. 
Marstou,  2  Washb.  533  ;  Finney  v.  Watkins, 
13  Mis.  291. 


(a)  But  a  tenant  by  the  curtesy  cannot  remove  permanent  buildings,  such  as  a  two  story  brick 
dwelling-house  and  a  large  barn,  erected  by  him  during  the  hfeof  his  wife  and  child.  M'Cul- 
lough  V.  Irvine,  1  Harr.  (Pen.)  438.  The  grantee  of  a  tenant  by  the  curtesy  has  all  the  rights 
of  a  tenant  for  life;  and,  in  respect  to  erections  made  by  him  for  the  purposes  of  trade, 
the  question  is  substantially  between  the  tenant  for  life  and  remainder-man.  Buckley  v. 
Buckley,  11  Barb.  43. 

(b)  Tiie  privilege  in  favor  of  trade  applies  only  as  between  the  landlord  and  tenant,  not 
in  favor  of  third  persons.     Oves  v.  Oglesby,  J  Watts,  106. 

(c)  Otherwise  with  iron  salt-pans,  for  boiling,  in  salt-works,  resting  on  brick-work. 
Mansfield  v.  Blackburne,  6  Bing.  N.  C.  426.  In  this  case,  there  was  a  lease  of  salt-springs, 
the  lessee  to  erect  works  and  pay  rent  in  proportion,  and  to  leave  the  works  in  repair.     Ib. 

(ot)  Sheds  erected  upon  posts,  by  a  tenant,  for  the  purpose  of  making  brick,  are  fix- 
tures, and,  if  not  removed  within  the  term,  vest  in  the  landlord.  Beckwith  v.  Boyce,  9 
Mis.  560.  Spinning-machines,  fixed  by  screws,  some  in  the  floor,  some  in  lead,  which  was 
melted  and  poured  ihto  holes  made  in  stone,  are  not  part  of  the  freehold,  but  subject  to  dis- 
tress.    Hellawell  v.  Eastwood,  3  Harr.  Dig.  (Supple.)  684. 


CHAP.  I.] 


REAL  PROPERTY  IN  GENERAL. 


23 


ing  on  the  land,  provided  it  is  a  different  and  distinct  erection,  and  not 
merely  the  old  one  repaired  or  reconstructed. (I)  Thus  a  tenant  may  re- 
move a  wooden  dwelling-house,  with  a  cellar  of  stone  or  brick,  and  a 
brick  chimney,  erected  by  him  for  the  business  of  a  dairy-man,  and  the 
residence  of  those  engaged  in  it,  and  in  part  improved  for  carrying  on  his 
trade  of  a  carpenter.(2)  An  erection  may  be  in  part  only  for  purpo- 
ses of  trade  :  as  in  the  case  of  a  cider-mill ;  or  where  a  grazier  also  fol- 
lows the  occupation  of  a  butcher ;  or  a  farmer  uses  his  grain  for  distil- 
ling ;  or  of  machinery  for  working  mines ;  in  all  which,  the  erections, 
though  connected  ivith  trade,  are  used  as  means  or  instruments  of  obtain- 
ing  the  profits  of  the  land.  So  in  the  case  of  a  dairy-man's  house,  used 
parti V  for  trade,  and  partly  as  a  habitation.  In  such  instances,  it  is 
suggested  that  the  right  of  removal  will  depend  upon  the  question, 
what  is  the  primary  business  carried  on.(a)  4.  The  tenant  may  remove 
articles  erected  for  ornament  or  domestic  use — ^^unless  the  removal  will 
cause  great  injury ;  such  as  hangings,  glasses,  chimney-pieces,  blinds, 
stoves,(Z')  coffee-mills,  shelves,  bells,  book-cases,  cornices,  fire-frames, 
&c.,  and  in  general  such  things  as  are  necessary  to  domestic  comfort, 
may  be  easily  severed,  and  will  be  equally  useful  in  another  dwelling. 
Upon  this  point  a  distinction  has  been  made  hQi\Y can  fixtures  and  fixed 
furniture.{3) 

84.  Upon  the  principle  of  the  third  class  of  cases,  it  seems,  gardeners, 
nursery-men,  &c.,  occupying  as  lessees,  may  remove  trees  and  shrubs, 
which  they  themselves  have  planted  for  the  purpose  o1  sale ;  but  not 
where  they  are  planted  for  any  other  purpose.  Whether  green-houses 
erected  by  such  occupants  are  removable,  quai.{4^)(c) 


(1)  1  "Whart.  94 ;  Beers  v.  St.  John,  16 
Conn.  322. 

(2)  Van  Ness  v.  Pacard,  2  Pet.  13T. 

(3)  Amo.q,  61-5;  Avery  v.  Chesslyn,  5 
Xev.  &  Man.  372 ;  2  Pet.  137  ;  17  Pick.  192; 
Birch  V.  Dawson,  2  Adol.  &  El.  37  ;  Tayl.  L. 


&  T.  365;  see  also  Longstaff  v.  Meagoe,  2 
Ad.  &E11.  167. 

(4)  Panton  v.  Robart,  2  E.  91 ;  Leo  v.  Ris- 
don,  7  Taun.  191;  Amos,  66  ;  King  v.  Wil- 
comb,  7  Barb.  263.  See  Adams  v.  Smith, 
Bre.  221. 


(a)  "Where  the  tenant,  being  a  tavern-keeper,  erected  a  building  which  was  used  lor  a 
shed,  stable,  store-room  and  barn ;  held,  they  might  be  removed,  if  it  could  be  done  with- 
out injury  to  the  land.     Dubois  v.  Kelly,  10  Barb.  496. 

(6)  In  Massachusetts,  where  a  house  was  set  off  on  execution,  iron  stoves,  fixed  to  the 
brick-work  of  the  chimneys,  were  held  to  pass  with  them.  Goddard  v.  Chase,  7  Mass.  432. 
A  question  has  been  recently  raised  in  England,  whether  a  door-plate  is  a  fixture.  Lane  v. 
Dixon,  11  Jur.  89. 

(c)  A  the  lessee  of  land,  permitted  B  to  occupy  the  land  as  a  nursery-garden.  The  ob- 
ject of  the  garden  was  to  cultivate  trees,  shrubs,  plants,  &c.,  for  sale.  B  sold  the  trees,  &c. 
to  C.  The  fruit-trees  having  been  attached,  held,  C  might  maintain  trespass  de  hon.  aspor. 
against  the  ofiicer.  The  plaintiff  had  a  right  to  remove  the  trees.  He  had  the  same  title 
as  his  vendor.  They  were  articles  of  produce,  reared  to  be  sold,  and  must  he  considered  as 
personal  property.  Whetlicr  they  could  have  been  attached  in  a  suit  against  the  owner  of 
the  land,  qucere.  Miller  v.  Baker,  1  Met.  27.  If  one,  having  a  temporary  interest  in  land, 
makes  improvements,  to  more  fully  enjoy  it  while  sucli  temporary  interest  continue.?,  ho  may 
at  any  time,  before  his  right  of  enjoyment  expires,  remove  such  improvements,  provided 
such  removal  do  not  leave  the  inheritance  in  a  worse  condition  than  when  the  tenant  took 
possession.  Thus  where  land  is  let  for  nurturing  trees  and  plants,  until  they  are  fit  to  be 
transplanted,  without  any  specific  limitation  of  time,  the  interest  of  the  owner  of  the  trees 
in  the  land  continues  until  that  purpose  is  accomplished.  King  v.  Wilcomb,  7  Barb.  263. 
See  Whitmarsh  v.  "Walker,  1  Met.  313. 

In  case  of  a  green-house  erected  by  a  tenant,  who  has  covenanted  to  yield  up  at  the  end 
of  his  term  all  erections  and  improvements;  removal  of  the  sashes  and  frame-work,  fixed  to 
the  walls  only  by  being  laid  on  them,  imbedded  in  mortar,  is  a  breach  of  covenant.  West 
V.  Blakeway,  3  Scott,  N.  R.  218,  And  this,  notwithstanding  a  license  during  tlio  term  to 
erect,  and  an  agreement  that  the  tenant  might  remove  them.  lb.  2  Man.  &  G.  729.  See 
Mansfield  v.  Blackburne,  8  Scott,  720. 


24 


REAL  PROPEKTT  IN  GENERAL. 


[CHAP.  L 


85.  On  the  other  hand,  a  tenant  in  husbandry  cannot  remove  his  own 
erections  for  merely  agricultural  purposes,  even  though  he  leave  the 
premises  precisely  as  he  found  them ;  as,  for  instance,  a  beast-house, 
carpenter-shop,  or  cart-house.  Nor  can  a  mere  farmer,  who  is  not  a 
professed  nursery-man  or  gardener,  carry  away  young  fruit-trees  raised 
on  the  land,  for  the  purpose  of  planting  in  his  gardens  or  orchards. 

86.  Neither  can  a  tenant  plough  up  strawberry- beds  in  full  bearing, 
though  he  purchased  them  of  a  prior  tenant,  conformably  to  a  general 
usage.(a)  Nor  can  he  remove  a  border  of  box — the  tenant  not  being  a 
gardener.(l) 

87.  It  has  been  questioned,  however,  whether  the  strict  rules  of  the 
common  law  as  to  agricultural  erections  are  to  be  considered  as  adopted 
in  this  country,  where  so  large  a  portion  of  leased  property  consists  in 
wild  lands,  which  it  is  the  interest  of  landlords  to  have  cleared  and 
built  upon. (2) 

88.  Where  a  tenant  has  the  right  of  removing  fixtures,  he  must,  in 
general,  exercise  it  before  quitting  possession  ;  though  not  necessarily 
before  the  end  of  the  term  ]{h)  but  the  rule  applies  only  to  fixtures  pro- 
perly so  called  ;  not  to  chattels  which  are  not  so  connected  with  the 
realty  as  to  become  a  part  of  it ;  (see  sec.  76 ;)  and  if  the  estate  is  un- 
certain in  duration — as,  for  instance,  an  estate  at  will,  or  pour  autre  vie 
— he  shall  have  a  reasonable  time  after  its  expiration.  It  has  been  held, 
that  for  entering  after  the  term  expires,  a  tenant  is  liable  only  for  a 
trespass  upon  the  land  ;  not  to  the  articles  removed.(3)  Mr.  Amos(4) 
questions  this  principle,  and  limits  the  right  of  removing  fixtures,  after 
the  term  expires,  to  the  case  where  the  tenant  holds  over.  This  he 
supposes  to  be  the  point  settled  in  Penton  v.  Bobart;{6)  and  that  where 
the  tenant  quits  possession  without  removing  a  fixture,  he  is  supposed 
to  made  a  dereliction  of  it  to  the  landlord.  The  doctrine  contended  lor 
by  Mr.  Amos  seems  to  be  confirmed  by  late  decisions  in  England.(6)(c) 


(1)  "Watherell  v.  Howells,  1  Camp.  221  ; 
Empson  v.  Soden,  4  Barn.  &  Ad.  655  ;  Wynd- 
ham  V.  "Way,  4  Taun.  316. 

(2)  2  Pet.  145 ;  Lawrence  v.  Kemp,  1 
Duer,  363. 

(3)  Holmes  v.  Treraper,  20  John.  29  ;  see 


Heap  V.   Barton,    10  Eng.   L.   &  Equ.  499; 
Beckwitb  v.  Boyce,  9  Miss.  560. 

(4)  p.  86,  et  seq. 

(5)  2  B.  88. 

(6)  Hubbard   v.   Bagsbavv,    4   Sim.    338; 
Weeton  v.  Woodcock,  7  Mees.  &  "W.  14. 


(a)  This  case,  however,  was  decided  on  the  ground  that  the  circumstances  showed  malice. 
It  was  said,  that  to  take  up  strawberry-beds  would  not  per  se  be  actionable. 

(&)  On  the  other  hand,  if  a  tenant  removes  and  sells  fixtures  during  the  term,  not  imme- 
diately replacing  them ;  this  is  not  per  se  a  breach  of  a  covenant  to  repair  and  uphold  and 
delive'r  up  the  premises,  with  all  things  affixed  thereto.     Doe  v.  Burnett,  3  Harr.  Dig.  (Suppl.) 

(c)  Where  a  lease  was  forfeited  by  bankruptcy  of  the  tenant,  and  the  lessor  entered,  but 
the  assignees  retained  possession,  and,  three  weeks  after  such  entry,  removed  certain  fix- 
tures erected  for  trade,  held,  such  removal  was  unlawful.  Weeton  v.  Woodcock,  7  Mees.  & 
W.  14.  And,  in  Pennsylvania,  it  has  been  recently  settled,  (see  sec.  89,)  that  as  between  a 
tenant  for  life  and  remainder-man,  the  removal  must  take  place  during  the  estate  ofthe  former. 
But  in  New  York,  a  tenant,  making  improvements,  which,  by  parol  license  or  agreement,  he 
has  the  right  to  remove,  may  remove  them  after  his  term  expires,  and  while  he  remams  m 
possession.     Dubois  v.  Kelly,  10  Barb.  496. 

So,  although  the  lessor  have  conveyed  his  estate,  and  the  improvements  were  made  alter, 
but  without  notice  of  such  conveyance.     lb. 

So,  where  the  lessor  of  a  mill  agreed  that  the  tenant  might  make  repairs,  the  expense  to 
come  out  ofthe  rent,  and  put  in  fixtures,  to  be  removed  by  him  at  the  end  of  his  term,  or 
paid  for  by  the  landlord  ;    and  the  landlord  obtained  an  injunction  against  their  removal 


CHAr.  I.] 


REAL  PROPERTY  IN  GENERAL. 


89.  A,  tenant  for  life,  leased  for  years  to  B,  under  an  agreement,  that 
if  the  latter  made  certain  erections,  he  should  have  the  right  to  remove 
them,  or  they  should  be  taken  by  A,  at  a  valuation.  B  erected  a  frame 
stable  and  shops.  A  died  before  expiration  of  the  lease,  but  B  con- 
tinued to  occupy  under,  and  pay  rent  to  the  remainder-man,  C.  C 
afterwards  sold  the  premises.  In  an  action  for  rent  by  C  against  B,  B 
defended,  on  the  ground  that  he  had  not  been  allowed  for  his  erections, 
and  that  C  had  received  the  value  of  them  in  the  sale.  Held,  B's  right 
of  removing  ceased  on  A's  death,  and  0  was  not  bound  by  the  contract 
between  A  and  B.(l)  * 

90.  A  fire-frame,  fixed  in  a  common  fire-place,  with  brick  laid  in  be- 
tween its  sides  and  the  jambs,  is  a  fixture  ;  and  a  tenant,  who  has  placed 
it  there,  cannot  remove  it  after  the  expiration  of  his  term  and  after 
leaving  the  premises,  though  he  may  before.(2) 

91.  A  landlord  offered  the  house  for  sale  at  auction,  reserving  a  fix- 
ture placed  in  it  by  the  tenant,  but  the  house  was  not  sold.  At  the 
expiration  of  his  lease,  the  tenant  sold  the  fixture,  and  quit  the  house. 
Held,  the  purchaser  could  not  afterwards  sever  and  remove  the  fix- 
ture.(3) 

92.  If  a  lessee  without  qualification  surrender  his  lease,  though  he 
also  take  a  new  one  from  the  same  landlord ;  he  loses  his  right  to  re- 
move a  building  erected  by  himself.  Otherwise,  where  he  neglects  to 
remove  under  a  verbal  agreement  to  buy  the  fixtures.(4) 

93.  In  addition  to  the  three  classes  of  cases,  enumerated  by  Lord  El- 
lenborough  in  Elwes  v.  Maw,  in  which  the  question  of  fixtures  arises ; 
there  are  others,  perhaps  of  less  importance,  but  often  occurring  in 
practice,  and  referred  to  in  the  books. 

91.  Thus,  while  a  tenant  himself  has  the  right  of  removing  certain 
things  affixed  to  the  realty,  his  creditors  may  attempt  to  seize  them,  as 


(1)  "White  V.  Arndt,  1  Whart.  9L 

(2)  Gaffield  v.  Hapgood,  17  Pick.  192.  So 
with  a  furnace.  Stocliwell  v.  Marks,  5  Shepl. 
455. 

(3)  lb. 


(4)  Shepard  v.  Spauldiiifr,  4  Met.  416 ;  Fitz- 
herbert  v.  Sbaw,  1  H.  Bl.  258  ;  Hallen  v.  Run- 
der,  3  Tyr.  959.  See  Mitchell  v.  Speedley, 
lOBarr,  198;  Bratton  v.  Clawson,  2  Strobh. 
478. 


during  the  term  ;  lield,  they  might  be  removed  within  reasonable  time  afterwards,  though 
the  tenant  was  no  longer  in  possession.     Finney  v.  Watkins,  13  Miss.  291. 

The  rule  in  the  text  has  been  held,  as  above  stated,  (sec.  88,)  not  to  apply,  where  the  dura- 
tion of  the  tenant's  interest  is  contingent;  as  where  he  holds  for  a  life;  in  which  case  he 
has  a  reasonable  time  for  removal  after  its  termination.  Weeton  v.  Woodcock,  7  Mecs.  &  W. 
14.  So,  whore  land  is  let  for  the  nurturing  of  trees  and  plants,  till  they  are  fit  for  trans- 
planting, the  tenant  may  cultivutc  them  till  they  are  thus  prepared,  and  then,  from  time  to 
time,  remove  them.    King  v.  Wilcock,  7  Barb.  263. 

A  'essor  agreed  with  his  lessee  for  years,  to  allow  him,  or  any  of  his  sub-lessees,  the 
value  of  improvements  made  by  them  on  portions  of  the  demised  premises,  or  the  privilege 
of  purchasing  such  portions  at  tlie  appraised  value,  at  tlie  expiration  of  the  term.  Tlie  les- 
sor, after  portions  had  been  sub-let,  procured  an  assignment  of  Ihe  original  lease  to  his  son, 
the  lessor  paying  tlie  consideration  tlierefor.  In  a  bill  by  one  of  the  sub-lessees,  against  the 
lessor,  after  the  expiration  of  the  term,  to  restrain  a  suit  at  law  to  recover  possession,  and  also 
for  a  specific  performance,  it  was  not  stated  whether  or  not  the  otlicr  sub-lessees  had  made 
improvements,  and  the  son  of  the  lessor  was  not  made  a  party.  Held,  that  no  relief  could  be 
granted  upon  the  complainant's  bill,  as  framed.     Ostrander  v.  Livingston,  3  Barb.  Ch.  416. 

In  England,  an  out-going  tenant  is  sometimes  allowed,  by  custom,  to  retain  possession  of 
the  land  on  whicli  his  away  goivg  crops  are  sown,  with  the  use  of  the  barns  and  stables  for 
housing  and  carrying  them  away  ;  while  the  in-coming  tenant  has  the  privilege  of  entering, 
during  the  old  tenancy,  for  the  purpose  of  ploughing  and  sowing.  Boraston  v.  Green,  16 
E.  71.     See  Beaty  v.  Gibbons,  16  E.  116. 


26  REAL  PROPERTY  IN  GENERAL.  [CHAP.  L 

chattels,  on  legal  process.(l)  And  there  seems  no  room  to  doubt,  that 
whatever  the  tenant  himself  might  remove,  may  also  be  thus  taken  by 
creditors.  Indeed,  the  question  of  a  tenant's  own  rights  is  often  raised 
in  this  v,-ay ;  and,  therefore,  the  case  of  a  creditor's  claim  upon  fixtures 
may  perhaps,  with  sufficient  accuracy,  be  classed  under  the  third  of 
Lord  Ellenborough's  divisions. 

95.  Analogous  to  the  case  of  a  lessee,  is  that  of  one  who  occupies 
the  land  of  another  person  as  his  agent.  And  the  latter  seems  to 
stand  on  a  less  favorable  footing,  in  regard  to  fixtures,  than  the 
former. 

96.  Thus,  the  agent  of  a  mill-owner,  occupying  by  permission 
and  indulgence  of  the  latter,  who  was  his  brother,  inserted  in  the  mill 
his  own  mill-stones  and  irons.  Held,  they  became  the  property  of  the 
mill-owner,  and  were  not  liable  to  the  creditors  of  the  agent,  though 
the  mill  had  been  carried  away  by  a  flood,  and  these  alone  remained 
on  the  premises,  and  were  afterwards  removed  and  offered  for  sale  by 
the  agent.  (2) 

97.  Another  case  of  very  frequent  occurrence  relating  to  the  law  of 
fixtures,  is  that  of  vendor  and  purchaser  ;{a)  where  the  owner  of  land 
conveys  it  to  another,  and  the  question  arises,  what  shall  pass  with  and 
as  a  part  of  the  land.  And  here  the  law  is  no  less  strict  in  favor  of  the 
purchaser,  than  it  is  in  favor  of  the  heir,  as  between  him  and  the  exec- 
•utor.(3)  Things  personal  in  their  nature,  but  fitted  and  prepared  to 
be  used  with  real  estate,  and  essential  to  its  beneficial  enjoyment,  pass 
with  the  realty.  Thus,  the  conveyance  of  a  saw-rnill{h)  passes  the  mill- 
chain,  dogs  and  bars  connected  with  it;  that  of  a  brewery,  passes  a 
malt-mill  attached  to  it ;  that  of  a  cotton-mill  passes  the  waters,  flood- 
gates, &c.,  and  also  the  machinerj^,  whether  affixed  or  not.  So  kettles 
for  manufacturing  ashes,  though  not  set,  have  been  held  to  pass  with 
the  premises  in  which  they  were  used.  So  fencing  stuff,  which  has  been 
used  for  fences,  though  temporarily  detached  from  the  land,  but  without 
any  intention  of  a  permanent  separation.     So  manure  in  a  barn-yard, 

(1)  "Wetberby  v.  Foster,  5  Verm.  136.  I  patch,  &c.  v.  Bellamy,  &c.,  12  N.   H.   205  ; 

(2)  Goddard  v.  Bolster,  6  Greenl.  427.  Buckley  v.  Buckley,  11  Barb.  43  ;  English  v. 

(3)  Miller  v.  Plumb,  6  Cow.  6G5;  Holmes  Foote,  8  S.  &  M.  444;  Petrie  v.  Dawson,  2 
V.  Tremper,  20  John.  30;  2  "Washb.  403;  Des-  '  Carr.  &  K.  138. 

(a)  The  rule  as  to  fixtures,  between  the  owner  and  purchaser,  at  a  sheriff's  sale,  is  the 
same  as  between  vendor  and  purchaser  at  private  sale.  Farrar  v.  Chaffetete,  5  Denio,  527. 
See  Bratton  v.  Clawson,  2  Strobh.  478. 

(&)  It  is  to  be  observed,  however,  that  this  construction  depended  in  part  upon  the  use  of 
the  word  mill,  as  a  term  of  description.  The  grant  of  a  saw-mill  or  grist-mill,  with  its  priv- 
ileges and  appurtenances,  will  pass  the  land  under  it,  and  tliat  required  for  tiie  use  of  the 
mill;  also,  the  head  of  water  necessary  to  its  enjoyment.  Maddox  v.  Goddard,  3  Shepl. 
218;  Rackley  v.  Sprague,  5  Sliepl.  281.  So  also  the  right  of  flowing  back  upon  otherlands 
of  the  grantor,  as  before  the  eonvej'ance.  lb.  The  grant  of  a  "mill-site"  passes  all  the 
land  covered  by  the  mill.     Crosby  v.  Bradbury,  2  Appl.  61. 

Conveyance  of  a  lot  of  land,  with  one  rolhng-mill  establishment,  buildings,  apparatus, 
steam  engine,  boilers,  bellows.  &c.,  attached  to  the  establishment.  Held,  rolls  passed  as 
part  of  the  machinery,  tliougli  temporarily  detached.  Voorhis  v.  Freeman,  2  W.  &  Serg. 
116;  Pyle  v.  Peunock,  lb.  390. 

A  clapboard  machine  and  shingle  machine,  fastened  into  a  saw-mill,  to  be  there  used, 
are  to  be  considered  a  part  of  the  realty,  and  will  pass  to  the  creditor  or  purchaser  by  a 
levy  upon  the  real  estate,  or  a  sale  thereof.     Trull  v.  Fuller,  28  Maine,  545. 

It  is  held,  in  a  late  case,  that  if  a  conveyance  of  a  mill  or  manufactory  use  words  com- 
monly applied  to  machinery,  it  will  pass  with  the  mill;  otherwise,  if  not.  Teafl'i;.  Hewitt, 
1  M'Cook,  540. 


CHAP.  I.] 


REAL  TROPERTY  IN  GENERAL. 


27 


even  though  (it  seems)  lying  in  heaps.  So  a  steam-engine,  ^vith  fix- 
tures, used  to  drive  a  bark-mill,  and  pounders  for  breaking  hides  in  a 
tannery,  erected  by  the  owner ;  is  part  of  the  realty,  and  pjisses  by  a 
conveyance  thereof.  And  there  are  many  articles,  absokrtely  necessary 
to  the  use  and  enjoyment  of  the  land,  which  will  pass  to  a  purchaser, 
whether  actually  upon  the  land  or  not.  Such  are  doors,  windows,  locks, 
keys,  mill-stones,  &c.     They  are  constructively  annexed.{l) 

98.  Nor  is  it  material,  whether  the  erection  is  for  trade  or  manufac- 
tures, or  merely  agricultural.  If  the  article  in  question  is  necessary  for 
carrying  on  the  business  meant  to  be  followed,  it  passes  to  the  purcha- 
ser. "  Thus,  a  cotton-gin,  attached  to  the  gears  in  the  gin-house  upon  a 
cotton  plantation,  passes  with  the  land.(2)(a) 

99.  But  where  the  owner  of  land  having  a  tanning-mill  upon  it  sold 
the  land,  with  a  parol  reservation  of  the  mill,  and  afterwards  sold  the 
latter  to  another  purchaser  ;  held,  (it  seems)  that  a  mill-stone,  affixed  to 
the  mill  with  iron  fastenings,  did  not  pass  with  the  land.(3)(5) 

100.  Where  the  land  conveyed  is  public  propertTj^  the  grant  will  not 
pass  wood,  which  has  been  previously  cut  and  corded  by  a  person  with- 
out title ;  but  the  latter  may  have  an  action  against  the  purchaser  for 
taking  it  away.  (4) 

101.  It  has  been  formerly  questioned,  whether  fixtures  Avould  pass 


bv,  1  "Watts,  lOG  ;  Harlan  v.  Harlan,  15  Penn. 
507. 

(2)  Farris  v.  "Walker,  1  Bai.  540. 

(3)  Heermance  v.  Yernoy,  6  John.  5.     See 
9  Cow.  39. 

(4)  Jones^v.  Snelson,  3  Misso.  393. 

(*)  Tliis  case  contains  an  interesting  exposition  of  the  law  of  fixtures,  as  modified  by  the 
numerous  inventions  and  improvements  of  modern  times,  both  for  purposes  of  domestic  con- 
venience, and  more  particularly  for  carrying  on  the  various  branches  of  manufactures. 


(1)  Liford's  case,  11  Co.  51;  Leroyv.  Piatt, 
4  Paige,  77;  Farrar  v.  Stackpole,  6  Greenl. 
154*;  Phillipson  v.  Mullanphy,  1  Misso.  620 ; 
Goodrich  v.  Jones,  2  Hill,  142 ;  Voorhis  v. 
Freeman,  2  "W.  &  Serg.  119;  Oves  v.  Ogels- 


(«)  "Where  the  owner  of  land  erects  a  dye-house  upon  it,  and  sets  up  dye  kettles  therein, 
firmly  secured  in  brick-work,  they  become  a  part  of  the  realty,  and  pass  without  express 
words,  by  a  deed  of  the  land.  Noble  v.  Bosworth,  19  Pick.  314.  Tlie  floor  of  a  bar-iron 
mill,  consisting  of  plates,  kept  down  by  their  own  weight,  and  removable  without  injury, 
passes  with  the  mill  to  an  execution  purchaser.     Pyle  v.  Pennock,  2  "W.  &  Serg.  390. 

(6)  Though  the  criterion  of  fixtures  in  a  mansion  or  dwelling,  be  actual  and  permanent 
fastening  to  the  freehold,  it  is  not  such  in  case  of  a  mill  or  manufactory.  But  machinery, 
necessary  to  the  existence  of  a  mill,  &c. ,  as  such,  is  part  of  the  freehold,  though  not  fastened 
to  the  floor  or  walls,  as  between  vendor  and  purchaser,  heir  and  executor,  execution  debtor 
and  creditor,  or  co-tenants  of  the  fee  ;  but  not  between  tenant  and  landlord  or  remainder- 
man. Thus,  a  sheriff's  sale  and  conveyance,  under  a  judgment  on  mortgage,  of  a  lot  and 
iron  rolling-mill,  "with  the  buildings,  apparatus,  steam  engine,  boilers  and  bellows  attached 
to  the  same,"  passes  the  entire  set  of  rolls  with  their  duplicates,  even  though  for  a  time  de- 
tached. So'tliese  would  pass  by  the  mortgage,  as  chattels,  under  the  term  apparatus. 
Yoorhis  v.  Freeman,  Penn.  Sept.  T.  1841,  Law.  Rep.  Mar.  — 42,  p.  452. 

A  cotton-gin,  in  its  place,  that  is  to  say,  connected  with  the  running  works  in  the  gin- 
house,  is  a  fixture  that  passes  to  the  purchaser  of  the  house.  Bratton  v.  Clawson,  2  Strobh. 
478. 

"Where  an  action  of  trespass,  for  carrying  off  a  gin,  was  brought  by  a  plaintiff,  who  had 
purcha.sed,  at  sheriflTs  sale,  the  land  upon  which  stood  the  gin-house,  with  the  gin  attached 
in  the  usual  way,  by  a  band,  without  proof  of  notice  that  tlie  gin  was  excepted  or  severed 
from  the  house;  and  where  the  defendant  had  purchased  the  gin  as  a  movable,  the  former 
owner,  who  was  the  defendant  in  the  execution,  having  directed  the  sheriff  to  levy  on  the 
gin  separately',  and  giveu  bond  for  its  delivery ;  held,  such  direction  and  conduct,  on  the 
part  of  the  defendant  in  execution,  was  merely  an  inchoate  arrangement,  and  did  not 
amount  to  ,i  practical  severance  of  tlie  gin  from  the  rest  of  the  machinery,  so  as  to  make  it 
personal  property,  not  passing  with  the  house  as  a  fixture.     Tb.       ' 


28 


REAL  PROPERTY  IN  GENERAL. 


[CHAP.  I. 


by  a  mortgage  of  the  land,  without  being  specially  named.(l)(a)  But 
there  seems  to  be  now  no  reason  to  doubt  that  they  do  pass.  Thus  the 
mortgagee  may  have  a  bill  for  an  injunction  against  waste  in  their  re- 
moval.(2)  And  the  mortgagor's  possession  is  not  deemed  fraudulent, 
as  in  case  of  mere  chattels.(J)  So,  although  an  erection,  which  the 
jury  find  to  be  not  a  fixture,  is  separately  conveyed  in  a  mortgage  of 
the  land,  the  mortgagee  need  not  take  possession  of  it  as  a  chattel  to  give 
him  title  against  creditors  of  the  mortgagor.(3)  So,  as  between  mortga- 
gor and  mortgagee,  fixtures  put  up  on  premises  leased  for  years,  pass  by 
a  mortgage  of  the  land.(4:) 

101  a.  A  steam-engine,  erected  in  a  permanent  manner  in  a  tan-yard, 
to  facilitate  the  process  of  tanning,  and  used  there  for  such  purposes  for 
two  or  three  years,  but  which  could  be  removed  without  injury  to  the 
building  with  which  it  was  connected  by  braces  ;  was  held  to  be  a  fix- 
ture, and  to  pass  b}''  a  mortgage  of  the  land. (5) 

102.  The  tenant  of  a  house,  in  which  certain  fixtures  had  been  erected, 
mortgaged  it  without  mentioning  them.  He  afterwards  assigned  the 
jDremises  and  all  his  estate  and  eftects  to  trustees,  and,  while  the  trustees 
were  in  treaty  for  selling  the  fixtures,  the  mortgagee,  his  debt  being 
due,  entered  forcibly,  and  refused  on  demand  to  deliver  them.  Held, 
trover  did  not  lie  against  him. (6) 

103.  Of  somewhat  similar  nature  is  the  case  of  a  mechanic^  claiming  a 
lien  upon  a  building,  which  he  has  erected.  Where  such  building  was 
a,  theatre;  held,  the  lien  embraced  the  permanent  stage,  but  not  the 
movable  scenery  and  flying  stages ;  the  former  being  a  part  of  the 
freehold,  but  the  latter  only  necessary  for  theatrical  exhibitions — a  spe- 
cies of  trade.  A  mechanic's  lien  will  embrace  a  steam  engine  used  for 
propelling  a  saw-mill.(7) 

103  a.  An  engine  house,  partly  of  stone  and  partly  of  wood,  with 
stone  foundations  for  a  steam-engine,  erected  by  a  tenant  for  years  for 
the  use  of  a  coal-mine,  he  having  the  privilege  of  removing  all  fixtures 
at  the  expiration  of  his  term,  is  not  the  subject  of  a  mechanic's  lien. (8) 

104.  As  between  mortgagor  and  mortgagee,  a  different  question 
arises  in  regard  to  fixtures,  viz. ;  whether  either  of  them  may  remove 
erections,  which  he  himself  has  made  upon  the  land.  In  Massachu- 
setts, one  holding  land  subject  to  redemption  may,  even  after  a  decree 


(1)  Quincy,  1  Atk.  477.  This  case  was 
evidently  decided  on  its  own  phraseology, 
and  not  on  any  distinction  between  condi- 
tional and  absolute  sales. 

(2)  Amos,  188,  etseq.;  Union,  &c.  v.  Em- 
erson, 15  Mass.  159;  Robinson  v.  Preswick, 
3.  Edw.  246. 

(3)  Steward  v.  Lombe,  1  Brod.  &  B.  510; 
See  "Wheeler  v.  Montefiore,  1  Gale  &  Da  v. 


493  ;  Hitchman  v.  Walton,  4  Mees.  &  W.  409 ; 
Buckley  v.  Buckley,  1 1  Barb.  43. 

(4)  Day  v.  Perkins,  2  Sandf.  Ch.  359. 

(5)  Sparks  v.  State  Bank,  7  Blackf.  469. 

(6)  Longstaff  v.  Meagoe,  2  Ad.  &  El.  167. 

(7)  Olympic,  &c.,  2  Browne,  285;  Morgan 
V.  Artliurs,  3  Watts,  140. 

(8)  White's  Appeal,  10  Barr,  252. 


(a)  It  has  been  held  that  gas-fixtures  and  sitting  stools,  placed  by  a  tenant  in  a  shop  or 
store,  though  fastened,  are  mere  chattels,  and  may  be  mortgaged  as  such;  and  in  an  action 
by  the  landlord,  against  a  subsequent  tenant,  for  not  delivering  them,  he  may  set  up  in  de- 
fence, the  title  of  the  mortgagee.     Lawrence  v.  Kemp,  1  Daer,  236. 

(6)  Where  a  landlord  distrained  certain  fixtures,  and  an  action  of  trover  was  brought 
against  him  ;  held,  an  allegation  in  the  writ,  describing  them  as  goods  and  chattels,  did  not 
estop  the  plaintifl'to  rely  upon  the  fact  of  their  being  annexed  to  the  realty,  as  making  the 
distress  illegal.     Dalton  v.  Wliittem,  3  Ad.  &  El.  N.  S.  961. 

Fixtures  are  not  distrainable,  because  not  capable  of  being  restored  or  put  back.  Darby 
V.  Harris,  1  Ad.  &  El.  N.  S.  895. 


CHAP.  I.] 


REAL  PROrKRTY  IN  GENERAL. 


29 


to  redeem,  remove  a  barn  and  blacksmith's  shop  erected  by  him,  and 
so  slightly  affixed,  that  they  may  be  removed  with  but  little  disturb- 
ance of  the  soil.  In  the  same  State,  it  has  been  since  held,  that  a  ket- 
tle, set  by  the  owner  of  a  freehold,  who  afterwards  mQitgages  such 
freehold,  cannot  be  removed  by  him,  or  taken  as  his  personal  property, 
but  passes  by  the  mortgage,  though  appurtenances  are  not  expressly 
named.  And  in  a  recent  case,  the  same  general  principle  has  been 
settled,  with  regard- to  additions  to  the  freehold  made  by  the  mortga- 
gor after  the  mortgage  ;  and  the  reason  for  the  distinction  between  such 
a  case,  and  that  of  improvements  made  by  a  tenant^  very  clearly  and 
satisfactorily  shown  to  consist  in  the  fact,  that  both  a  mortgagor  and  a 
tenant  are  presumed  to  make  the  improvements  for  their  oivn  benefit; 
which  object  will  be  best  effected  by  treating  them  in  the  former  case 
as  part  of  the  freehold,  and  in  the  latter  as  personal  property,  remova- 
ble by  the  tenant.  The  further  consideration  was  suggested,  that  one 
of  the  most  usual  purposes  of  mortgaging  real  estate,  is  the  raising  of 
money  to  be  expended  on  its  improvement.(l) 

105.  In  New  Hampshire,  a  mortgagor  in  possession  is  a  trespasser, 
if  he  remove  a  mill  which  he  himself  has  built,  or  anything  attached 
to  it.  This  decision  proceeds  upon  the  ground,  that  the  mortgagor  has 
only  to  redeem,  in  order  to  have  the  benefit  of  the  building ;  and,  if  not 
worth  redeeming,  he  ought  not  to  do  anything  to  lessen  the  value  of 
the  property. (2)(a) 

106.  In  South  Carolina  a  statute  provides,  that  a  tenant  shall  not 
alter  or  remove  buildings,  without  written  permission  from  the  land- 
lord, under  penalty  of  forfeiting  the  residue  of  the  term. (3) 

107.  In  England,  shares  in  some  corporations  have  been  held  to  be 
real  estate ;  as  for  instance  in  the  New  River  ivater,  in  the  navigation 
of  the  river  Avon,  and  in  some  navigable  canals.(4) 

108.  So,  in  Connecticut,  shares  in  a  turnpike  were  held  to  be  real 
estate.     But  a  subsequent  statute  has  provided  other\vise.(5)(5) 


(1)  Taylor  v.  Townsend,  8  Mass.  411  ;  15 
ifass.  159  ;  Winslow  v.  Merchants',  &c.,  4 
Met.  306. 

(2)  Pettengill  v.  Evans,  5  N.  H.  54. 

(3)  S.  C.  St.  1817,  37. 

(4)  1  Cruise,  38;  2  Ves.  652.  Chancellor 
Kent  say."?,  that  in  J'^ngland,  shares  in  compa- 
nies actin;^  on  land  exclusively,  as  railroad, 
canal  and  turnpike  companies,  are  held  to 
be   real  estate.     3  Coram.    340,  n.   5th  ed. 


But  see,  as  to  shares  in  Water  Works,  that 
they  are  personal,  Bradley  v.  Holdsworth,  3 
M.  &  W.  422:  Bligh  v.  Brent,  2  T.  &  Coll. 
268.  If  A.  &  B.  build  a  bridge  across  a  river 
between  their  respective  lands,  by  authority 
of  the  Legislature  ;  the  bridge  is  real  estate. 
Mcason,  4  Watts,  341. 

(5)  Welles  v.  Cowles,  2  Conn,  567  ;   Dutt. 
46.     See  Price  v.  Price,  6  Dana,  107. 


(a)  If  a  mortgagor  erects  fixtures,  he  cannot  remove  them  before  payment  of  the  debt. 
And  if  the  mortgagee  removes  them  after  the  mortgagor's  death,  they  do  not  belong  to  the 
executor  of  the  latter.     Butler  v.  Page,  1  Met.  40. 

(6)  A  testator  bequeathed  the  interest  and  proceeds  of  the  residue  of  his  property,  "  of 
every  description  it  jnight  be  at  his  death,"  to  certain  persons  for  their  lives;  and  after  the 
decease  of  the  siirvivor,  he  bequeathed  the  residue  in  equal  moivties  between  the  Britisli 
and  Foreign  Bible  Society,  and  the  Home  Missionary  Society.  Part  of  the  testator's  prop- 
perty  consisted  of  railway  shares.  On  a  bill  filed  by  the  treasurer  of  one  of  the  charities, 
it  was  held,  ivithout  prejudice  to  the  question  ivhether  the  railwuy  shares  were  or  icere  not  real 
estate  within  the  mortmain  act,  that  the  ultimate  remainder-men  were  entitled  to  have  the 
railway  shares  sold,  and  the  produce  invested  in  consols.  Thornton  v.  Ellis,  10  Eng.  Law 
and  P"q.  85. 

In  Kentucky,  shares  in  a  railroad  corporation  have  been  held  real  estate,  descending,  as 


30 


REAL  PROPERTY  IN  GENERAL. 


[CHAP.  I. 


109.  lu  Massachusetts,  shares  in  a  corporation  are  personal  property, 
even  though  the  corporation  be  instituted  merely  for  the  purpose  of 
holding  real  estate.(l)  Shares  in  a  railroad  corporation  are  expressly 
made  personal  estate. (2)  And  it  has  been  decided  in  Rhode  Island, 
that  shares  in  a  bridge  corporation  were  personal  property;  and  also, 
that  when  they  belonged  to  a  wife,  and  the  husband  died  without  doing 
any  act  to  reduce  them  to  possession,  they  vested  in  the  wife,  not  in 
his  administrator.(3)  In  North  Carolina  and  Ohio,  shares  in  corpora- 
tions are  personal  estate.(4)  And  this  is  undoubtedly  the  general 
principle  of  American  law. 

110.  In  equity,  money  directed  or  agreed  to  be  laid  out  in  land,  is 
regarded  as  land.  A  court  of  equity,  regarding  the  substance,  and 
not  the  mere  forms  and  circumstances,  of  agreements  and  other  instru- 
ments, considers  things  directed  or  agreed  to  be  done,  as  having  been 
actually  performed,  where  nothing  has  intervened  which  ought  to  pre- 
vent a  performance ;  provided  the  purposes  for  which  the  acts  are  to 
be  done  are  legal,  and  can  be  carried  into  effect.  The  true  meaning  of 
this  maxim  is,  that  equity  will  treat  the  subject  matter,  as  to  collateral 
consequences  and  incidents,  in  the  same  manner  as  if  the  final  acts  con- 
templated by  the  parties  had  been  executed  exactly  as  they  ought  to 
have  been.(5) 

111.  Thus,  where  one  devises  and  bequeaths  all  his  real  and  personal 
estate  to  trustees  to  be  sold,  and  then  bequeaths  the  proceeds  to  an  alien ; 
the  interest  bequeathed  to  the  latter  is  personal  estate,  and  he  shall 
hold  it.  So,  where  land  is  devised  to  a  wife,  but  with  orders  that  it 
be  turned  into  money,  the  husband  takes  the  absolute  title.  So,  land 
held  for  trading  purposes,  is  in  equity  treated  as  personal  property.(6) 

112.  Where  money  is  directed  or  agreed  to  be  turned  into  land,  or 
the  converse,  if  the  cestui  que  trust  has  the  whole  beneficial  interest,  he 
may,  at  any  time  before  the  conversion  takes  place,  either  by  his  acts 
or  declarations,  or  by  application  to  a  court,  elect  to  take  either  the 


(1)  Sull.  on  L.  T.  71 ;  4  Dane,  670  ;  Rus- 
sell V.  Temple,  3  lb.  108. 

(2)  Mass.  Rev.  Sts.  343. 

(3)  Arnold  v.  Ruggles,  S.  J.  C.  Sept.  1837. 

(4)  N.  C.  Rev.  St.  121 ;  Walk.  Intr.  211. 

(5)  3  Wheat.  578 ;  Hawley  v.  James,  5 
Paige,  318;  1  Story  on  Eq.  79;  See  Coster 
V.  Clarke,  3  Edw.  428  ;  Beardsley  v.  Knight, 
10  Verm.  185;  Arnold  v.  Gilbert,  5  Barb. 
190 ;  Lindsay  v.  Pleasants,  4  Ired.  Equ.  320. 

(G)  Craig  v.  Leslie,  3  Wheat,  563  ;  Proctor 
t'.  Fenebeo,  1  Ired.  Equ.  143  ;  Bligh  v.  Brent, 
2  Y.  &  Coll.  268;  Thomas  v.  Wood,  1  Md, 
Oh.  296.  See  Queen  v.  St.  Margaret,  &c.,  2 
Ad.  &  Ell.  (N.  S.)  559 ;  Wood  v.  Keyes,  8 
Paige,  365 ;  Bogert  v.  Hertell,  4  Hill,  492 ; 


Foster  v.  Hilliard,  1  Story  R.  77  ;  Bleight  v. 
Manufacturers  &c.,  10  Barr,  131 ;  Johnson  v. 
Corbett,  11  Paige,  265;  Svvartwout  v.  Burr, 

1  Barb.  495  ;  Peter  v.  Beverly,  10  Pet.  533  ; 
Gott  V.  Cook,  7  Paige.  534 ;  Kane  v.  Gott, 
24  Wend.  660 ;  Rutherford  v.  Green,  2  Ired. 
122;  Reading  v.  Blackwell,  1  Baldw.  166; 
Tilghman,  5  Whart.  44 ;  Amphlett  v.  Parke, 

2  R.  &  My.  221 ;  Dawes  v.  Haywood,  2  Dev. 
&B.  Equ.  313  ;  Grievesonv.  Blissopp,  2  Keen, 
653  ;  Harcourt  r.  Seymour,  5  Eng.  L.  &  Equ. 
203;  White  v.  Smith,  8  lb.  77  ;  Slocum  v. 
Slocum,  4  Edw.  Ch.  613  ;  Coyte,  &e.,  3  Eng. 
L.  &  Equ.  224;  Rawley  v.  Adams,  7  Beav. 
548. 


such,  to  heirs,  and  subject  to  dower.    Price  v.  Price,  6  Dana,  107.    Otherwise  in  Ohio,  Johns 
V.  Johns,  1  McCook,  (Ohio,)  350. 

In  Maryland,  where  a  statute  provided,  that  the  property  of  a  corporation  should  be  held 
as  real  estate;  held,  this  applied  only  to  the  stockholders  themselves,  not  as  between  them 
and  third  persons:  and,  tlierefore,  that  the  levy  of  an  execution  must  be  as  upon  personal 
property.  Cape  Sable,  &c.,  3  Bland,  670.  On  the  other  hand,  canal  stock,  though  declared 
to  be  perf3onal  property,  is  still  real,  and  governed  by  the  same  law  as  the  land  over  which 
the  canal  passe-s.     Binney,  2  lb.  138. 


CHAP.  I.] 


REAL  PROPERTY  IN  GENERAL. 


land  or  the  money.  If  he  make  no  election,  and  die,  as  to  his  repre- 
sentatives, the  conversion  shall  be  intended  to  have  taken  place.  The 
mere  direction  of  a  testator  will  not  change  the  proceeds  of  land  sold 
into  personalty.     They  will  still  remain  mere  equitable__^asscte.(l) 

113.  Where  by  will  land  is  appropriated  to  the  payment  of  debts  and 
legacies,  the  heir  or  residuary  legatee  has  a  resulting  trust  in  the  land, 
subject  to  the  fulfilment  of  this  object :  and  he  may  either  restrain  the 
trustee  from  selling  more  than  is  required,  or  offer  to  pay  the  debts 
and  legacies  ;  and  either  a  portion  of  the  land  or  the  whole,  as  the  case 
may  be,  will  then  be  held  as  land,  and  not  as  money.  Otherwise,  where 
the  evident  intent  is,  to  give  the  character  of  personalty  to  the  whole 
proceeds.  If  the  legatee  of  the  money  to  be  raised  by  a  sale  of  land 
elect  to  take  the  land  instead,  the  law  regards  it  as  a  new  acquisition 
by  him,  and  it  will  descend  from  him  as  such,  and  not  as  inherited 
property  .(2) 

114.  In  England  it  has  been  held,  that  the  land  shall  be  treated  as 
land,  with  reference  to  a  residuary  legatee,  even  though  he  have  made 
no  election.    But  this  doctrine  is  expressly  overruled  in  this  country. (3) 

115.  Where  land  of  one  deceased  is  sold  by  order  of  court  for  pay- 
ment of  debts,  the  surplus  shall  be  distributed  as  real  estate.  So  a  re- 
cognizance, given  to  husband  and  wife  for  her  share  in  the  estate  of 
one  deceased,  survives  to  her  upon  the  husband's  death — following  the 
nature  of  the  kind.  So  an  annuity  secured  to  a  widow  in  lieu  of  dower 
is  treated  as  land,  and  as  such  passes  to  her  second  husband.  But  a 
bond,  given  to  one  heir  for  his  share  of  the  land  descended,  is  personal 
property  ;(a)  and,  if  an  order  contained  in  a  will  for  the  sale  of  land  is 
conditional,  it  does  not  become  personalty  till  actually  sold. (4) 


(1)  3  Wheat.  5G3  ;  State  v.  Nicols,  10  Gill 
&  J.  27  ;  Clay  v.  ITart,  7  Dana,  6 ;  See  Hag- 
gard V.  Rout.'  6  B.  Mon.  247. 

(2)  3  Wheat.  582-3-5 ;  Simpson  v.  Kelso, 
8  Watts,  247. 

(3)  lb.     Roper  v.  Radeliffe,  9  Mod.  167. 

(4)  Diller  v  Young,  2  Ye.  261 ;  Yoke  v. 
Barnet,  1  Binn.  364;  Lode  v.  Hamilton,  2 
S.  and  R.  493  ;  Parke  &  J.  287.  See  Henry 
V.  M'Closkey,  9  Watt.s,  145;  Parker  v.  Stuck- 
ert  2  Miles,  278 ;  Wright  u.  Rose,  2  Sim.  & 
Stu.  323 ;  Moses  v.  Murgatroyd,  1  John. 
Cha.  130  ;  Cli.  34,  §  1,  n. ;  Burn  v.  Sim,  1 
Whar.252;  Simpson  v.  Kelso,  8  Watts,  247  ; 
Tilghman,  5  AVliar.  44  ;  Reading  v.  Black- 
well,  1  Bald.  166;  Rinehart  v.  Harrison,  lb. 
177  ;  Wharton  v.  Shaw,  3  W.  and  Serg  124  ; 


Hannah  v.  Swarner.  lb.  223.  Where  land  is 
devised  to  a  married  woman,  to  be  sold,  the 
husband  will  not  be  allowed  to  purchase  it, 
and  thus  acquire  an  interest  as  husband. 
Samuel  v.  Samuel,  4  B.  Monr.  256.  Where 
A.  agreed  with  B.  to  sell  land  to  B.,  but 
died  before  giving  a  deed,  the  agreement 
being  then  valid,  but  afterwards  ceasing  to 
be  so  by  the  laches  of  B.;  held,  the  next  of 
kin,  not  the  heir  of  A.,  took  the  land.  Curre 
V.  Bowyer,  5  Beav.  6,  n.  Where  one,  having 
made  a  devise  of  land,  sells  it,  and  a  deed  is 
given  after  his  death,  the  price  belongs  to 
the  executor,  &c.,  though  there  is  a  lien  on 
the  land  therefor.  Farrar  v.  Winterton,  5 
Beav.  L  See  Simpson  v.  Ashworth,  6,  412  ; 
Evans  v.  Salt,  6,  266. 


(a)  These  several  points  have  been  decided  in  Pennsylvania.  They  seem  hardly  recon- 
cilable. The  first  conforms  to  the  Statute  Law  of  Massachusetts.  Rev.  St.  457.  See 
Stover  V.  Com.  16  Penn.  387. 

Where,  upon  partition  in  the  orphans'  court,  the  land  is  adjudged  to  a  part  of  the  heirs, 
who  give  their  recognizance,  the  conversion  of  the  other  heirs'  share  of  the  realty  into  per- 
sonalty is  complete,  when  the  recognizance  is  given,  and  the  land  is  adjudged  to  the  accept- 
ors.    Ebbs  V.  The  Commonwealth,  1  Jones,  374. 

The  following  somewhat  miscellaneous  decisions  may  be  cited  to  illustrate  the  several 
principles  stated  in  the  text. 

A  testator  devised  his  estate  to  his  widow  for  life,  and  directed  his  executors,  after  her 
decease,  if  the  majority  of  his  children  should  agree,  to  sell  the  real  estate,  and  out  of  the 
proceeds  to  pay  a  debt,  and  a  certain  sum  to  each  of  his  children,  and  to  distribute  the  re- 


32  REAL  PROPERTY  IN  GENERAL.  [CHAP.  L 

116.  The  distinction  between  real  and  personal  estate,  though  less 
important  in  the  United  States  than  in  England,  where,  by  the  common 

sidue  among  his  children  three  rears  thereafter.  Held,  the  real  estate  was  not  con- 
verted into  personalty  until  a  sale  by  consent  on  the  death  of  the  wife ;  and  that  the  share 
of  a  married  daughter,  dying  in  the  lifetime  of  the  wife,  descended  to  her  children,  and  did 
not  pass  to  her  administrator.     Xagle's  Appeal,  1  Harris,  260. 

Husband  and  wife  conveyed  the  equity  of  redemption  in  land  belonging  to  the  wife  to  a 
trustee,  in  trust  to  sell  the  same  for  their  benefit.  Held,  a  conversion  of  the  land  into  per- 
sonalty, so  that  the  husband  might  dispose  of  it  in  the  lifetime  of  the  wife,  and  after  her 
death  hold  it  absolutelv  and  against  her  heirs,  although  the  land  were  not  sold  under  the 
trust.     Siter  v.  il'Clanachan,  2  Gratt.  2S0. 

The  land  thus  being  converted  into  personalty,  the  husband  may  make  a  valid  mortgage 
of  it  without  having  his  wife  join  in  the  deed.     lb. 

Real  estate,  settled  in  trust  for  a  wLfe  for  life,  &c.,  was  sold  by  the  husband  under  a 
power  of  sale,  and  the  proceeds  invested  in  stocks,  though  required  by  the  settlement  to 
be  invested  in  land.  The  husband,  wife,  and  surviving  trustee,  by  a  deed  declared  the 
stock  to  be  held  on  the  trusts  of  the  former  deed.  The  husband  died  in  the  wife's  life- 
time, intestate.  She  made  her  will  after  his  death,  whereby  she  gave  all  her  personal 
estate  and  efifeeta  "  whatsoever  and  wheresoever,  and  of  every  kind  soever,  which  she 
should  be  possessed  of  or  entitled  to  at  the  time  of  her  death,  in  possession,  remainder, 
reversion,  or  expectancy."  to  her  two  daughters.  The  produce  of  the  sale  of  the  land 
was  never  re-invested  in  land,  pursuant  to  the  trusts  of  the  original  settlement.  Held,  the 
stock  was  to  be  treated  as  real  and  not  personal  estate  ;  that  it  did  not  pass  by  the  will  of 
the  wife,  the  words  there  used  relating  exclusively  to  personal  estate ;  and  that  it  de- 
scended to  the  heir  at  law.     Gillies  v.  Longlands,  5  Eng.  Law  and  Eq.  Rep.  59. 

Where  the  land  of  a  married  woman  was  sold  by  order  of  a  court  of  equity  for  partition  ; 
held,  the  husband  was  entitled  to  a  life  estate  in  the  proceeds  of  the  sale,  in  the  same  man- 
ner as  he  would  have  had  a  life  estate  in  the  land,  if  it  had  remained  tnsold.  Forbes  v. 
Smith,  5  Ired.  Eq.  369. 

"Where  the  real  estate  of  a  married  woman  has  been  converted  into  personalty  by  opera- 
tion of  law,  during  her  lifetime,  it  will  be  disposed  of  by  the  court,  after  her  death,  in  the 
same  manner  as  if  she  had  herself  converted  it  into  personal  property  previous  to  her  death. 
Graham  v.  Dickinson,  3  Barb.  Ch.  169. 

Conveyance  of  the  estate  of  a  feme  covert,  by  her  and  her  husband  in  trust,  with  a  provi- 
sion that,  upon  her  death,  the  husband  should  liave  a  life  estate  in  the  land,  or,  in  lieu  there- 
of $2,500  out  of  the  proceeds,  if  he  should  prefer  to  sell  After  the  wife's  death,  the  hus- 
band let  the  land  for  a  year,  and  afterwards  elected  to  sell ;  but.  as  the  trustee  was  dead,  a 
new  one  was  appointed' by  a  friendly  suit  in  chancery,  and  the  land  advertised  for  sale,  but 
the  husband  died  before  the  day  of  sale.  Held,  the  husband  having  elected  to  sell  in  lieu 
of  a  life  estate,  such  election  was  an  equitable  conversion  of  the  land  into  money,  on  the 
principle  that  that  which  ought  to  have  been  done  should  b&considered  as  done,  that  the  elec- 
tion was  not  defeated  bv  his  death,  and  that  the  sum  of  $2,500  should  be  paid  his  executor, 
deducting  the  rent  reserved.     Washington  v.  Abraham.  6  Gratt.  66. 

A  testator  devised  his  lands  to  his  executors  to  be  sold,  and  gave  a  legacy  of  $2,000  to 
his  niece,  to  be  paid  to  her  out  of  the  proceeds  of  the  sale  of  liis  real  estate.  Held,  the  sur- 
viving husband  of  the  niece  had  the  same  title  to  demand  this  legacy  bequeathed  to  his 
wife,  as  if  it  had  been  payable  out  of  the  personal  estate  of  the  testator ;  and  that  it  made 
no  difference  whether  the  wife  died  before  or  after  the  sale  actually  took  place.  Thomas  v. 
Wood,  1  Maryland  Ch.  Decis.  296. 

Where,  for  the  purpose  of  making  partition,  a  wife's  land  was  sold,  and,  aft«r  the  sale,  the 
husband  assigned  the  purchase-money,  but,  while  it  remained  in  the  commissioners'  hands, 
the  wife  died ;  held,  the  purchase-money  was  to  be  regarded  as  land,  that  the  marital  rights 
had  never  attached,  and  that  the  assignee  of  the  husband  took  only  his  share  in  the  fund, 
as  distributee  of  liis  wife.     Ex  parte'Mobley,  2  Rich.  Eq.  56. 

A  testator  in  Kentucky  devised  land  to  his  widow  during  life  or  widowhood.  By  statute 
and  judicial  proceedings  tliere,  she  was  empowered  to  sell  the  laud  and  invest  the  proceeds 
in  land  in  Missouri.  Held,  that  the  money  received  by  the  sale  was  to  be  regarded  as  real 
estate.     Gates  v.  Hunter,  13  Mis.  511. 

When  the  land  of  an  infant  is  sold  by  a  decree  of  a  court  of  equity  for  a  particular  pur- 
pose, any  surplus  of  money,  that  remains  after  that  purpose  is  accomplished,  will  be  regard- 
ed as  real  estate ;  and,  upon  the  death  of  the  infant,  intestate,  will  go  to  his  heirs  at  law, 
and  not  to  his  next  of  kin.     March  v.  Berrier,  6  Ired.  Eq.  524. 

The  statute  in  New  York,  authorizing  the  sale  of  lands  of  infants,  must  be  construed  ac- 
cording to  the  principles  of  the  common  law  at  the  time  of  its  passage,  by  which  the  pro- 
ceeds of  such  sale  retain  the  character  of  real  estate,  even  after  the  infant  attains  his  majori- 
ty, in  the  absence  of  any  act  or  intent  on  his  part  to  change  its  character ;  and  where  he 


CHAP.  I.]  REAL  PROrERTY  IN  GENERAL.  03 

law,  lands  arc  not  subject  even  to  the  payment  of  debts,  except  of  a 
certain  kind,  is,  notwithstanding,  in  many  points  of  view,  of  the  high- 
est consequence.  Eeal  estate  in  many  of  the  States  cannot  be  held  by 
aliens.  Heal  estate  only  can  be  entailed,  or  is  subjiit-rto  curtesy  and 
dower.  Dillerent  formalities  are  required  for  the  conveyance  and  de- 
vise of  real  and  personal  property.  Lands  and  chattels  are  disposed  of 
differently  by  executors  and  administrators,  and  upon  legal  process. 
And  the  distinction  often  decides  the  validity  of  uses,  trusts  anil  re- 
mainders. The  various  tenures,  incidents,  liabilities  and  transfers  of 
real  property  are  not,  of  course,  to  be  properly  treated  of,  in  this  mere 
iutroductor}'  view  ;  but  will  constitute  the  subjects  of  the  subsequent 
portions  of  the  work. 


died  after  attaining  hia  majority,  without  manifesting  such  intent,  as  in  case  of  his  retaining 
a  bond  and  mortgage  given  for  the  purchase-moneys  of  hishmd  sold  during  infancy,  tlie  mo- 
neys received  thereby  were  held  to  go  to  his  heirs  at  law  according  to  the  statute  of  de- 
scents.    Foreman  v.  Foreman,  7  Barb.  215.     See  Sweozoy  v.  Thayer,  Duer,  28G. 

Where  a  lunatic,  whoso  real  estate  had  been  sold  by  order  of  court,  lor  his  maintenance 
and  the  payment  of  his  debts,  died  intestate,  and  an  unexpended  balance  of  the  fund  from 
such  sale  remained  in  the  hands  of  his  committee,  it  was  held,  that  this  balance  was  to  bo 
regarded  as  land,  for  the  purposes  of  distribution.  lb. 

Money  paid  into  court  by  a  railway  company,  for  land  taken  under  the  lands  clauses  act, 
from  a  person  who  was  in  a  state  of  mental  imbccililj',  and  who  continued  in  that  state  un- 
til his  death,  but  was  not  the  subject  of  a  commission  of  lunacy,  was  ordered  after  his  death 
not  to  be  re-invested  in,  or  considered  as  laud,  but  to  be  paid  to  his  executors.  Flamank 
ex  parte,  3  Eng.  Law  and  Eq.  Rep.  243. 

Equitable  conversion  takes  place  in  case  of  an  agreement  to  sell,  although  the  option  to 
purchase  within  a  certain  time  rests  solely  with  the  purchaser.  Kerr  v.  Day,  14  Penn.  State 
R.  (2  Harris,)  112. 

An  interest  in  a  contract  for  the  purchase  of  laud  is  real  estate,  and  descends  to  the  heirs 
of  the  purchaser,  and  the  purchaser's  administrator,  if  ho  recsive  rent  for  such  land,  or  money  ' 
for  the  sale  of  the  intestate's  interest  therein,  is  accountable  to  the  heirs  fur  the  amount  so 
received.     Griffith  v.  Beecher,  10  Barb.  432. 

A  devise  of  land  to  executors  to  sell  for  the  payment  of  debts  is  a  conversion  of  it,  and 
the  proceeds  are  applicable  to  pecuniary  legacies.     Sharpley  r.  Forwood,  4  Harring.  336. 


Vol.  I. 


84 


ESTATES  IN  LAND.    ESTATE  IN  FEE  SIMPLE.  [CHAP.  IL 


CHAPTER  11. 

ESTATES  IN  LAND.     ESTATE  IN  FEE  SIMPLE. 


1.  Estates,  &c. — meaning  of  the  terms. 

5.  Freehold. 

8.  Fee  simple. 

9.  Feudal  law  and  American  tenures. 
16.  Seizin. 

21.  Entry. 

26.  Seizin  of  heirs — continual  claim. 


31.  Seizin  in  laiv  and  deed. 

33.  Disseizin. 

45.  Abeyance. 

48.  Freehold  in  futuro. 

50.  Rectors  and  parsons. 

56.  Incidents  to  a  fee  simple. 


1.  An  estate  in  land,  is  the  interest  whicli  the  tenant  has  therein  ;  or 
the  condition  or  circumstance  in  which  the  owner  stands  with  regard 
to  his  property.  It  impUes  some  kind  of  actual  interest  or  ownership 
— not  a  bare  possibility,  as  in  case  of  an  heir  apparent ;  or  a  mere 
power,  as  where  one  orders  his  executors  to  sell  his  land,(a)  The 
words  estate,  right,  title  and  interest,  express  substantially  the  same  idea, 
more  especially  when  used  in  a  devise.{l)  The  land  is  one  thing,  says 
Plowden,  and  the  estate  in  the  land  is  another  thing  ;  for  an  estate  in 
the  land,  is  a  time  in  the  land,  or  land  far  a  time.{2) 

2.  Estates  may  be  considered  with  respect  to  their  quantity  and 
their  quality.  Quantity  is  the  extent  of  time  or  degree  of  interest ;  as 
in  fee,  for  life,  &c.  Quality  refers  to  the  nature,  incidents  and  other 
collateral  qualifications  of  interest,  as  a  condition,  joint-tenancy,(3)(&) 

&c. 

3.  Another  classification  of  estates  is,  1,  as  to  the  quantity  of  inter- 
est ;  2,  as  to  the  time  when  it  takes  effect,  whether  immediate  or 
future  ;  3,  as  to  the  number  and  relation  of  the  owners.(4) 

4.  Any  person  holding  an  interest  in  land,  for  years,  for  life,  or  any 
greater  estate  of  freehold,  in  reversion  or  remainder,  is  an  oiuner.{p){c) 


(1)  Newkirk  v.  Newkirk,  2  Caines,  351 ; 
1  Steph.  Comra.  216 ;  Jones  v.  Roe,  3  T.  R. 
93;  Knocker  i'.  Bunbury,  8  Scott,  414;  Doe 
V.  Tomkinson,  2  M.  &  S.  170  ;  Queen  v.  St. 
Margaret,  kc,  2  Ad.  &  Ell.  N.  S.  559 ;  Doe 
V.  Shotter,  8  Ad.  &  Ell.  905. 

(2)  Walsingham's  Case,  Plow.  555. 


(3)  Co.  Lit.  345  a;  1  Cruise,  39;  2  Bl. 
Com.  103 ;  1  Pres.  on  Est.  7  ;  see  Wise, 
Rey.  Sts.  313. 

(4)  lb. 

(5)  Ellis  V.  Welch,  6  Mass.  251 ;  Daven- 
port V.  Farrar,  1  Scam.  316. 


(a)  Trustees  under  a  will  being  empowered  "  to  grant  and  sell  the  whole  or  any  part"  of 
the  testator's  "  estate,  real  or  personal,  with  full  power  to  execute  any  deed  or  deeds  el- 
fectual  in  law  to  pass  a  complete  title  thereto;"  held,  the  legal  estate  did  not  vest  in  the 
trustees.     Fay  v.  Fay,  1  Cusb.  93. 

As  to  the  technical  meaning  of  the  words  "propriety"  and  "  liberties,"  when  used  in  an- 
cient colonial  statutes,  see  Com.  v.  Alger,  1  Cush.  70,  71. 

(&)  It  is  said,  that  qualified  and  conditional  fees  dififer  from  fees  simple  only  in  quality. 
"With  respect  to  quantity,  tbeae  estates  stand  on  equal  ground.  Co.  Lit.  18,  a;  1  Steph. 
Comm.  224-5. 

(c)  A  statute  provided  a  penalty  for  cutting  timber,  recoverable  by  the  oiuner  of  the  land. 
Held,  the  owner  in  fee  was  the  party  intended;  and  a  devisee  for  life,  with  a  naked  and 
contingent  power  to  dispose  of  the  land,  if  necessary,  for  a  special  and  limited  purpose, 
•with  remainder  over,  could  not  sue  for  the  penalty.  Jarrot  v.  Vaughn,  2  Gilm.  132.  A 
contractor  for  the  erection  of  a  house,  who  has  an  equitable  title  to  it,  is  an  owner  under 
the  New  York  lien  law  of  1851.     Belmont  v.  Smith,  1  Duer,  675. 


CHAP.  IL]  ESTATES  IN  LAND.     ESTATE  IN  FEE  SIMPLE. 


35 


5.  With  respect  to  the  quantity  of  interest,  the  primary  division  of 
estates  is  into  freehold  and  less  than  free! told. 

6.  A  freehold  is  defined  to  be  an  estate  in  lands  or  other  real  prop- 
ert3^,  held  by  a  free  tenure^  for  the  life  of  the  tcnafif,  or  that  of  some 
other  person,  or  for  some  uncertain  period.  It  was  formerly  charac- 
terized, as  an  estate  which  could  be  created  only  by  livery  of  seizin^  or 
as  the  possession  of  the  soil  by  a  freeman  ;  a  freeman  being  one  who 
could  go  where  he  pleased.(l)(a)  Neither  of  these  defmitions  is  appli- 
cable to  the  United  States,  All  claim  to  be  freemen,  and  livery  of 
seizin  is  universally  dispensed  with,  either  by  usage,  or  by  the  express 
language  or  necessary  implication  of  statutory  provisions.  A  freehold 
is  now(i)  well  described,  as  any  estate  of  inheritance  or  for  life  in  real 
property.(2)  It  seems  quite  superfluous  to  add  immobility  as  another 
quality  of  freeholds.  Immobility  is  a  property  of  land  itself,  but  not 
of  an  interest  in  land. 

7.  Freeholds  are  divided  into  estates  of  miteritance  and  estates  not  of 
inheritance.     These  again  are  subdivided,  as  will  be  seen  hereafter. 

8.  The  highest  estate  in  lands  known  to  the  American  law  is  a/ee 
simj^le.  A  fee  simple  is  a  pure  inheritance  or  absolute  otvnership,  clear  of 
any  qualification  or  condition  ;  or  "a  time  in  the  land  without  end  ;" 
and  upon  the  death  of  the  proprietor  gives  a  right  of  succession  to  all 
his  heirs.  This  application  of  the  word  fee,  to  express  the  quantity  of 
interest  in  land,  and  not  the  tenure  by  which  it  is  held,  is  as  old  as  Lit- 
tleton and  Plowden,  and,  although  questioned  by  some  later  commenta- 
tors, has  been  on  the  whole  successfully  vindicated.(3) 

9.  The  learned  author  of  a  "  Digest  of  the  laws  of  England  respecting  real 
property"  prefixed,  to  the  second  edition  of  his  valuable  book,  "  a  prelimi- 
nary dissertation  on  Tenures;"  rightly  treating  this  portion  of  his  labors 
as  rather  an  introduction  to  the  work  than  a  component  portion  of  the 
work  itself.  In  entering  upon  a  view  of  the  American  law  of  Eeal  Pro- 
perty, it  can  serve  no  practical  purpose  to  go  into  all  the  intricacies  of 
the  Feudal  Law.     The  early  settlers  of  this  country  left  that  law  behind 


(1)  Brit.  c.  32;  Lit.  s.  59;  2  Bl.  Com.  80; 
Dalrymple  on  Feud.  Prop.  11;  1  Cruise,  39; 
Wise.  Per.  Sts.  313. 


(2)  4  Kent,  23-4.     Seo  1  N.  Y.  Rev.  Sta. 
722. 

(3)  2  Bl.  Com.  81 ;  Lit.  s.  1  &  n.  1 ;  Plow. 
555;  Wise.  Rev.  Sts.  313. 


(a)  "A  free  tenement  (freehold),  is  that  which  one  holds  to  him  and  his  heirs.  So,  also, 
for  his  life  only,  or  for  an  indeterminate  period,  without  other  certain  limitation  of 'time! 
as,  until  something  is  done  or  not  done ;  as  if  it  is  said,  I  give  to  such  an  one,  until  I  shall 
provide  for  him.  But  freehold  cannot  be  predicated  of  anything  which  one  holds  for  a  cer- 
tain number  of  years,  months,  or  days  ;  although  for  the  term  of  a  hundred  years,  which 
exceeds  the  lives  of  men."     Bracton,  207,  a. 

(&)  A  tenant  for  his  own  life,  or  for  the  life  of  another,  is  a  freeholder,  and  may  levy  a 
fine.     Roseboom  v.  Van  Vechten,  5  Denio.  414. 

A  person  in  the  adverse,  though  wrongful  possession  of  land,  holding  as  owner,  has  a 
tortious  estate,  and  is  a  freeholder  de  facto.  Such  tortious  estate  authorizes  the  levying  of 
a  fine,  which,  after  five  years'  non-claim,  would  bar  the  rights  of  the  remainder-men  and 
strangers.     lb. 

Where  a  widow,  seized  of  land  durante  viduitate,  the  remainder  being  in  her  children, 
conveyed  in  fee,  with  full  covenants,  to  one  who  entered  and  held  the  land,  claiming  to  be 
owner  in  fee,  and  the  defendant,  having  entered  and  held  as  owner  under  mesne  convey- 
ances from  the  grantee  of  the  widow,  levied  a  fine  with  proclamations  while  the  New  York 
Statute  of  fines  was  in  force  ;  held  the  fine  was  valid,  and  barred  the  remainders.     lb. 


■3g  ESTATES  IN  LAND.     ESTATE  IN  FEE  SIMPLE.  [CHAP.  II. 

them;(a)  or,  if  any  relic  of  it  survived  till  the  revolution,  all  was  then 
swept  away.  The  feudal  law  was  Vi  political  system,  which  never  made 
any  part  of  American  institutions.  The  policy  and  government  of 
some  States,  indeed,  approached  nearer  to  it  than  that  of  others.  New 
Hampshire,  New  York,  Virginia,  the  Carolinas(i)  and  Georgia,  admin- 
istered by  royal  commissions  ;  and  Pennsylvania,  Maryland  and  Dela- 
ware, by  proprietary  patent — were  less  decidedly  anti-feudal^  than  Afas- 
sachusetts,  Rhode  Island  and  Connecticut,  with  their  free  and  well-de- 
fined corporate  charters.  Still  the  feudal  system^  with  all  its  cumbrous 
machinery,  such  as  it  was  when  abolished  in  England  by  St.  12  Oha. 
2,  c.  24,  was  never  transferred  to  the  United  States  in  practice,  and  in 
■some  instances,  as  in  Massachusetts  by  a  colonial  act  of  1641,  was  ex- 
pressly abrogated ;  and  it  has  been  truly  said,  that  every  real  vestige  of 
enure  is  annihilated. (l)(c) 

(1)  4  Kent  2-i;  Jurist,  No.  31,  page  OT. 


(a)  "Our  New  England  ancestors  left  behind  them  the  whole  feudal  system  of  the  other 
continent."     Webster,  Speech  in  Convention,  Speeches,  205. 

(6)  In  North  Carolina,  before  the  Revolution,  statutes  were  enacted  "by  his  Excellency 
the  Palatine,  and  the  rest  of  the  true  and  absolute  Lords  Proprietors  of  the  Province  of 
Carolina,  by  and  with  tlie  advice  and  consent  of  the  rest  of  the  members  of  the  general  as- 
sembly." 

(c)  Chancellor  Kent  gives  the  following  clear  and  precise  accounts  o^  feuds.  "  These  grants, 
which  were  first  called  lenefices,  were,  in  their  origin,  for  life,  or  perhaps  only  for  a  term 
of  years.  The  vassal  had  a  right  to  use  the  land  and  take  the  profits,  and  he  was  bound  to 
render  in  return  such  feudal  duties  and  services  as  belonged  to  a  mihtary  tenure.  The  pro- 
perty of  the  soil  remained  in  the  lord  from  whom  the  grant  was  received.  The  right  to  the 
soil  and  to  the  profits  of  the  soil,  were  regarded  as  separate  and  distinct  rights.  This  dis- 
tinction continued  when  feuds  became  hereditary.  The  king,  or  lord,  had  tlie  dominium  di- 
rectum, and  the  vassal,  or  feudatory,  the  dominium  utile;  and  there  was  a  strong  analogy 
between  lands  held  by  feudal  tenure,  and  lands  held  in  trust;  for  the  trustee  has  the  tech- 
nical legal  title,  but  the  cestui  que  trust  reaps  the  profits.  The  leading  principle  of  feudal 
tenures,  in  the  original  and  genuine  character  offends,  was  the  condition  of  rendering  mili- 
tary service.  Prior  to  the  introduction  of  the  feudal  system,  lands  were  allodial,  and  held 
in  free  and  absolute  ownership,  in  like  manner  as  personal  property  was  held.  Allodial 
land  was  not  suddenly,  but  very  gradually  supplanted  by  the  law  of  tenure;  and  some  cen- 
turies elapsed  between  the  first  rise  of  these  feudal  grants  and  their  general  establishment." 
Commentaries,  voL  3,  pp.  494-5.  He  goes  on  to  remark,  that  in  England,  from  the  earliest 
periods,  lands  were  held  by  feudal  tenure  alone,  although  this  species  of  title  was  first  fully 
establislied  by  tlie  Norman  conquest.  Tenures  were  either  by  knight  service,  consisting  of 
military  services,  or  by  socage,  in  which  the  services  were  generally  |)red'/«i  ox  pacific.  The 
former  class,  though  held  the  more  honorable,  were  subject  to  divers  burdens  and  exactions , 
of  a  very  oppressive  character ;  that  o^aids,  or  pecuniary  payments,  whenever  the  lord  mar- 
ried his  daughter,  made  his  son  a  knight,  or  was  himself  taken  prisoner;  reliefs,  paid  by  an 
heir  of  the  tenant,  upon  succeeding  to  tho  inheritance  ;  luardshix)  and  marriage,  the  guard- 
ianship and  disposition  in  marriage  of  an  infant  heir;  fi^ne,  upon  any  alienation  of  the  land; 
and  escheat,  or  a  reverting  of  tlie  land  to  the  lord  for  the  crime,  or  upon  failure  of  heirs,  of 
the  tenant,     lb.  pp.  501-3. 

Socage  tenure  denotes  lands  held  by  a  fixed  and  determinate  service.  It  is  of  feudal  ex- 
traction, and  retains  some  of  the  leading  properties  of  feuds,  lb.  509.  It  was  the  tenure 
prescribed  in  all  the  early  colonial  charters  or  patents  in  this  country,  under  the  terms,  "ac- 
cording to  the  free  tenure  of  lands  of  East  Greenwich,  in  the  county  of  Kent,  in  England, 
and  not  in  capite  or  by  knight's  service."     lb.  511,  n. ;  1  Story  on  the  Constitution. 

Upon  this  subject  Chancellor  Kent  further  remarks: — "The  only  feudal  fictions  and  ser- 
vices whicli  can  be  presumed  to  be  retained  in  any  part  of  the  United  States,  consist  of  the 
feudal  principle,  that  tho  lands  are  held  of  some  superior  or  lord,  to  whom  the  obligation  ot 
fealty,  and  to  pay  a  determinate  rent,  are  due.  The  act  of  New  York  in  1787,  provided, 
that  the  socage  lands  were  not  to  be  deemed  discharged  of  "  any  rents  certain,  or  other  ser- 
vices incident  or  belonging  to  tenure  in  common  socage  due  to  the  people  of  tliis  State,  or 
any  mean  lord,  or  other  person,  or  the  fealty  or  distresses  incident  thereunto."  The  Revised 
Statutes  also  provide,  that  "the  abolition  of  tenures  shall  not  take  away  or  discharge  any 
rents  or  services  certain,  which  at  any  time  heretofore  have  been,  or  hereafter  may,  be,  ere- 


CHAr.  II.]  ESTATES  IN  LAND.     ESTATE  IN  FEE  SIMPLE.  37 

10.  In  England,  the  king — liimsclf  not  a  tcnant(l) — is  held  to  be 
the  only  original  source  of  title  to  real  estate.  Theoretically,  a  similai- 
principle  has  been  adopted  in  this  country ;  to  Arit,  that  individual 
propert}^  in  lands  can  be  deduced  only  from  the  crown^- the  ante-revolu- 
tionary, United  States  or  State  govcrnments.(2)(rt)  By  the  law  of  na- 
tions, the  discovery  of  a  new  continent  gave  to  the  discovering  nation 
an  exclusive  right  to  acquire  the  soil  from  the  native  inhabitants;  and 
individual  citizens,  no  less  than  foreign  governments,  were  precluded 
from  purchasing  it,  except  through  the  intervention  of  the  public  au- 
thority. Thus,  in  New  York,  it  was  held,  that  the  court  would  not  no- 
tice claims  to  lands  within  the  State,  under  grants  from  the  French  gov- 
ernment in  Canada  before  the  treaty  between  Great  Britain  and  France 
in  1763  ;  such  claimsbcing  at  most  merely  equitable,  and  a  foundation  for 
application  to  the  government.  It  was  subsequently  decided,  that  such 
French  grants  were  mere  nullities,  affording  no  legal  evidence  of  title  ; 
that  any  possession  under  them  was  wholly  unavailing,  being  not  ad- 

(1)  "Because  he  liath  no  superior  but  God  I       (2)  3  Kent,  307-8. 
Almighty."     Co.  Lit.  lb.  | 


ated  or  reserved.  The  lord  paramount  of  all  socage  land,  was  none  other  than  the  people 
of  the  State,  and  to  them  and  them  only,  the  duty  of  fealty  was  to  be  rendered  ;  and  the 
quit-rents  which  were  due  to  the  king  on  all  colonial  grants,  and  to  which  the  peopl-c  suc- 
ceeded at  the  Revolution,  have  been  graduallj'  diminished  by  commutation,  under  various 
acts  of  the  Legislature,  and  are  now  nearly,  if  not  entirely,  extinguished."  3  Kent,  509- 
10. 

"  The  continental  jurists  frequently  considered  homage  and  fealty  as  synonymous ;  but  this 
was  not  so  in  the  English  law,  and  the  incident  of  homage  was  expressly  abolished  in 
New  York  by  the  act  of  1787,  while  the  incident  of'fealt}'  was  expressly  retained."  lb. 
510.  "This  Statute  saved  the  services  incident  to  tenure  in  common  socage,  and  which  it 
presumed  might  be  due,  not  only  to  the  people  of  the  State,  but  to  any  mean  lord  or  private 
person,  and  it  saved  the  fealty  and  distresses  incident  thereunto.  But  this  doctrine  of  the 
feudal  fealty  was  never  practically  applied,  nor  assumed  to  apply  to  any  other  superior  than 
the  chief  lord  of  the  fee,  or,  in  other  words,  the  people  of  the  State  ;  and  then  it  resolved  it- 
self into  the  oath  of  allegiance,  which  every  citizen,  on  a  proper  occasion,  may  be  required 
to  take."     lb.  511-12. 

In  New  Tork,  the  people  are  the  owners  of  all  the  lands  within  the  state,  which  had  not, 
prior  to,  or  have  not  since,  the  revolution,  been  granted  to  others ;  and  in  their  right  ofsov- 
ereignty  they  are  deemed  to  possess  the  original  and  ultimate  property  in  all  the  lands  of 
the  state.  People  v.  Livingston,  8  Barb.  253  ;  v.  Van  Rensselaer,  lb.  189. 

Being  the  source  of  title,  the  people  are  presumed  to  be  the  owners  of  land  not  granted 
by  them,  until  the  contrary  appears.  And  in  an  action  to  recover  the  possession  of  premises, 
brought  in  theirname,  it  is  sufficient  in  the  first  instance,  to  entitle  them  to  recover,  to  show 
that  such  premises  are  vacant,  uninclosed  and  unoccupied.  lb. 

By  the  American  revolution  the  people  succeeded,  as  owners,  to  all  the  lands  within  the 
limits  of  the  state,  which  had  not  prior  thereto  been  legally  granted,  held,  or  possessed,  by 
persons  or  corporations,  or  in  whom  the  title  had  not  been  legally  vested.  lb. 

The  absolute  propertj-,  of  all  kinds,  and  all  right  and  title  to  the  same,  which  on  the  9th  of 
July,  1776,  vested  in,  or  belonged  to,  thecrown  of  Great  Britain,  became  from  that  date  forever 
vested  in  the  people  of  the  State,  in  their  sovereign  capacity.  But  with  respect  to  lands  which 
prior  to  Oct.  1775,  had  been  legally  granted  to  individuals,  by  the  crown,  or  to  which  the 
title  had  been  legall}'  acquired  by  individuals  in  any  other  way,  neither  the  revolution,  nor 
the  change  of  the  form  of  government,  nor  the  declaration  of  the  sovereignty  of  the  people, 
worked  any  change  or  forfeiture  in  the  ownership  of  such  property.  lb. 

In  Massachusetts,  Shaw.  C.  J.,  says,  (Com.  v.  Alger,  7  Cush.  66,)  "it  is  not  necessary  to 
trace  the  powers  of  the  colonial  government  further.  They  were  then  regarded,  and  have 
ever  since  been  acknowledged  to  be  ample  and  snfQcicnt  to  grant  and  establish  titles  to  land, 
and  to  all  territorial  rights  and  privileges.  To  the  grants  and  acts  of  the  government,  all 
titles  to  real  properly  in  Massachussetts,  with  their  incidents  and  qualifications,  are  to  bo 
traced  as  their  source." 

(a)  It  is  said,  in  a  republic,  a  title  to  land  derived  from  government,  springs  from  the  lav:, 
M'Connell  v.  Wilcox,  1  Scam.  344. 


38 


ESTATES  IN  LAND.     ESTATE  IN  FEE  SIMPLE. 


[CHAP.  n. 


verse  to  any  private  right,  but  rather  a  controversy  between  the  two 
governments,  and  therefore  did  not  avoid  the  effect  of  a  grant  from 
the  provincial  government  after  the  conquest  of  Canada.  A  question 
was  long  made  in  the  same  State,  whether  the  constitutional  prohibi- 
tion of  purchases  from  the  Indians  was  applicable  to  purchases  from 
individuals,  or  only  those  from  the  nations  or  governments.  It  was 
finally  held  to  extend  to  the  former,  being  introduced  for  the  benefit 
and  protection  of  the  Indians  as  well  as  the  good  of  the  State,  and 
therefore  entitled  to  a  benign  and  liberal  interpretation.(l)(a) 

11.  In  Delaware,  a  statute  declares  the  title  to  lands  in  that  State  to 


(1)  Jackson  v.  Ingraham,  4  John.  163; 
V.  Waters,  12,  365  ;  Goodell  v.  Jack- 
son, 20,  693  ;  ace.  De  Armas  v.  Mayor,  &c.,  5 
Mill.  (Louis.)  132;  Baltimore  v.  M'Kim,  3 
Bland,  455.  But  see  Mitchell  v.  U.  S.  9  Pet. 
748,  756,  757,  that  purchases  made  at  Indian 
treaties,  under  sanction  of  the  TJ.  S.,  pass  a 
title  without  any  patent.  See  further,  Brush 
V.  Ware,  15  Pet.  93;  Fletcher  v.  Peck,  6 
Cranch,  87  ;  John.son  v.  M'Intosh,  8  Wheat. 


543  ;  Cherokee,  &c.  v.  Georgia,  5  Pet.  1 ; 
State  V.  Foreman,  8  Yerg.  256 ;  Holland  v. 
Pack,  Peck,  151 ;  Blair  v.  Pathkiller,  2  Terg. 
407  ;  Clark  v.  Smith,  13  Pet.  195.  In  Ten- 
nessee, State  grants  of  land,  to  which  the 
Cherokee  title  has  not  been  extinguished,  are 
adjudged  void.  Gillespie  v.  Cunningham,  2 
Humph.  19.  See  Kennedy  v.  M'Cartney,  4 
Port.  141. 


(a)  "  In  tlie  colonies,  both  of  Massachusetts  and  New  Plymouth,  early  laws  were  passed, 
prohibiting  individuals  from  purchasing  lands  of  the  Indians;  sometimes  declaring  such 
conveyances  void,  and  sometimes  providing  that  they  should  inure  to  the  use  of  the  govern- 
ment." Per  Shaw,  Ch.  J.,  Clark  t'.  Williams,  19  Pick.  500.  Brown  v.  Wenham,  10  Met. 
495.  See  Martin  v.  Waddell,  16  Pet.  367.  Conn.  Sts.  1850,  37.  Kellogg  v.  Smith,  7  Cush. 
375  ;  Stephens  v.  Westwood,  20  Ala.  275. 

The  title  of  the  native  Indians  to  their  lands  is  an  absolute  ownership  :  and  the  right  of 
pre-emption  of  lands  in  the  western  part  of  the  State  of  New  York,  ceded  to  Massachusetts 
by  the  convention  of  1786,  was  simply  a  right  to  purchase  the  lands  from  the  Indiansvvben 
they  chose  to  sell  them ;  therefore  the  grantee  of  the  pre-emptive  right  cannot  maintain  tro- 
ver for  saw  logs  cut  on  such  lands  by  the  Indians  and  sold  to  the  defendants.  Fellows  v. 
Lee,  5  Denio,  628. 

The  title  to  the  lands  of  Indian  reservations,  in  New  York,  is  in  the  State  or  its  grantees; 
the  use  and  possession  alone  belongs  to  the  Indians,  until  they  voluntarily  relinquish  it. 
Strongs.  Waterman,  11  Paige,  607. 

Lands  not  under  Indian  government,  but  held  by  individual  Indians  as  tenants  in  com- 
mon, are  subject  to  the  jurisdiction  of  the  State  or  territory  in  which  they  lie.  [Per  Olney, 
J.]     Telford  v.  Barney,  1  Iowa,  (Greene,)  575. 

The  laws  and  customs  of  the  Choctaws  were  not  abrogated,  as  to  members  of  the  tribe, 
by  the  extension  of  the  jurisdiction  of  the  State  of  Alabama  over  their  territory ;  nor, 
would  be,  except  by  positive  enactment.     Wall  v.  Williamson,  8  Ala.  48. 

The  first  article  of  the  treaty  of  1814,  with  the  Creek  Indians,  confers  upon  the  chiefs  and 
warriors  provided  for,  a  qualified  inheritable  estate,  which  is  determined  by  the  sale  of  the 
reservee,  the  cesser  of  occupation,  and  his  removal  from  the  State;  and  immediately  upon 
such  abandonment  of  possession,  the  reservation  becomes  a  part  of  the  public  domain,  with- 
out any  positive  assertion  of  right  upon  the  part  of  the  United  States.  Crommelin  v.  Min- 
ter,  9  Ala.  594. 

Though  the  title  to  a  reservation  under  that  article  be  vested  in  the  United  States  by  the 
voluntary  abandonment  of  the  reserve,  it  is  not  subject  to  entry  under  the  pre-emption  laws 
of  Congress.  lb. 

Such  article  does  not  invest  the  chiefs,  warriors,  or  other  reservees,  with  an  estate  alien- 
able at  their  pleasure.     James  t.  Scott,  9  Ala.  579. 

A  person  having  possession  of  a  tract  of  land,  on  which  an  Indian,  the  head  of  a  family, 
was  located  under  the  treaty  with  the  Creek  Indians,  may  have  an  interest  that  may  be 
levied  on  and  sold,  although  five  years  have  elapsed  since  the  date  of  the  treaty,  and  no 
patent  has  issued  to  any  one,  and  the  president  lias  not  approved  a  sale  of  the  land  by  the 
reservee.     Rains  v.  Ware,  10  Ala.  623, 

In  the  absence  of  proof  that  a  savage  tribe  of  Indians  have  laws,  or  customs  having  the 
force  of  law,  regulating  the  descent  of  property,  the  presumption  arises  that  the  property  of 
a  deceased  person  would  belong  to  the  first  occupant.     Brashcar  v.  Williams,  10  Ala.  630. 

After  the  extension  of  the  laws  of  the  Slate  over  a  tribe,  property  in  the  possession  of  In- 
dians is  prima  facie  liable  to  the  payment  of  their  debts.  lb. 


CHAP.  II.]     ESTATES  IN  LAND.  ESTATE  IN  FEE  SIMPLE. 


39 


be  founded  upon  the  cession  made  by  the  treaty  of  peace  to  the  citi- 
zens of  the  United  States,  by  virtue  of  vvbich  the  soil  of  the  State  be- 
came tbe  property  of  its  citizens ;  and  proceeds  to  declare  invalid  all 
grants  by  former  proprietaries,  but  at  tbe  same  tiQie_coofirms  tbem 
"  discharged  from  all  rents,  fmes  and  services."(l) 

12.  But  although  American  titles  to  real  estate  are  originally  derived 
from  the  govcnnnent,  yet,  after  they  have  been  acquired,  the  tenant  in 
fee  is  to  all  intents  and  purposes  ahsolule  oiuner.  Princi|)les  undoubtedly 
remain  in  American  law  which  are  of  purely  feudal  origin,  and  probably 
would  not  originally  have  made  a  part  of  any  other  than  the  feudal 
system.  The  claim  has  been  set  up,  that  in  Ohio,  and  the  other  States 
formed  out  of  the  North  Western  Territory,  by  reason  of  the  great 
ordinance  of  1787,  which  constitutes  the  ground-work  of  their  law,  and 
the  absence  of  any  express  adoption  or  immemorial  use  of  English 
principles  ;  not  one  doctrine  remains  in  force  that  can  be  deduced  from 
tenure,  but  real  estate  is  owned  by  an  absolute  and  aUodial{a)  title.(2) 
It  may  well  be  doubted,  whether  this  is  a  distinguishing  peculiarity  6f 
the  North  Western  States.  In  New  York,(3)  the  legislature  have  for- 
mally abolished  feudal  tenures,  or  more  properly  disclaimed  their  ex- 
istence, and  declared  all  lands  to  be  allodial;  and  this  principle  has 
been  incorporated  in  the  constitution.(i)  So  the  statute  law  of  Connect- 
icut,(4)  after  reciting,  that  whereas,  by  the  establishment  of  the  inde- 
pendence of  the  United  States,  the  citizens  of  this  State  became  vested 
with  an  allodial  title  to  their  lands,  provides  that  every  proprietor  of 
lands  in  fee  simple  has  an  absolute  and  direct  i^'^'op^^^'ty  <^nd  dominion 
therein,  and  that  patents  or  grants  from  the  general  assembly  of  tbe 
colony,  according  to  the  charter  of  Cha.  IL,  are  eflfectual  in  passing  an 
estate  to  the  purchasers  and  their  heirs  forever.  So  in  Maryland, 
Pennsylvania,  Michigan  and  Wisconsin, (5)  lands  are  declared  to  be  holden 
by  an  allodial  title.(c)  In  South  Caralina,  the  statute  of  Cha.  II.,  es- 
tablishing the  tenure  of  free  and  common  socage,  was  early  adopted  by 
statute  with  the  great  body  of  the  common  law. (6) 

13.  On  the  whole  it  may  be  safely  said,  that  with  regard  to  the  whole 
United  States  alike,  the  feudal  system,  as  a  laiv  of  tenures,  is  abolished  ; 
and  the  remark  of  Chancellor  Kent(7)  is  strictly  true,  that  an  estate  in 


(1)  Del.  Rev.  L.  545 ;  ace.  16  Pet.  367. 

(2)  Jurist,  Jan.  1834,  94. 

(3)  1  Rev.  St.  718;    Const.  1846,  art.  1, 
sects.,  12,  13. 

(4)  Rev.  L.  348. 

(5)  Sarah,  &c.,  5  Rawle,  112-3  ;  Matthews 


V.  Ward,   10  Gill  &  J.  443;    Mich.  L.  393; 
Wise.  Rev.  Sts.  313. 

(6)  1  Brev.  Dig.  136. 

(7)  4  Com.   3  ;   Cornell  v.  Lamb,   2  Cow. 
652. 


(a)  The  term  applied  in  the  English  law  to  such  estates  of  the  subject  as  are  not  holden 
of  any  superior.     2  Bl.  Com.  39,  47,  81 ;  Co.  Lit.  lb;  see  3  Kent,  497,  n. 

(h)  By  the  Revised  Statutes  (719,  sects.  8,  10),  every  citizen  of  the  United  States  may 
hold  lands  in  the  State,  and  talco  them  by  descent,  devise  or  purchase,  and  every  person 
capable  of  holding  lands,  except  idiots,  persons  of  unsound  mind,  and  infants,  seized  of  or  en- 
titled to  any  interest  in  lands  may  alien  it,  according  to  law. 

(c)  The  charter  to  "Wm.  Penn  was  in  free  and  common  socage,  with  power  to  aliene,  &c., 
reserving  services,  rents,  Ac,  to  him,  not  to  the  king.  Hence  the  statute  quia  emptores  was 
never  in  force  in  Pennsylvania.  Ingersoll  v.  Sergeant,  1  Whart.  348.  In  Maryland,  the 
Lord  Proprietor  held  in  free  and  common  socage,  with  the  incident  of  feudal  services.  And 
his  grantees,  before  the  revolution,  held  in  like  manner ;  but  by  that  event  both  tenure 
and  services  were  abolished,  and  the  title  became  allodial.  10  Gill  &  J.  443.  Quit  rents, 
due  any  subject  of  a  foreign  prince,  are  abolished.     Md.  L.  158. 


40  ESTATES  IN  LAND.     ESTATE  IN  FEE  SIMPLE  [CHAP.  IL 

free  and  pure  allodium^  and  an  estate  in  fee  simple  absolute,  both  mean 
the  most  ample  and  perfect  interest  which  can  be  owned  in  land.(a) 
"We  need  not  spend  time  to  show,  that  there  is  nothing  feudal  in  the 
principle,  by  which  lands  derived  by  patent  from  the  government  may 
be  forfeited  for  non-payment  of  taxes  ;(1)  nor  is  there  much  more  of 
the  feudal  character,  or  of  limitation  to  absolute  ownership,  in  the  doc- 
trine of  escheat,  by  which,  upon  failure  of  heirs,  the  land  of  a  tenant  in 
fee  simple  passes  to  the  State  or  the  people.  With  us,  escheats  take 
effect,  not  upon  principles  of  tenure,  but  by  force  of  our  statutes,  to 
avoid  the  uncertainty  and  confusion  inseparaV^le  from  the  recognition 
of  a  title,  founded  in  priority  of  occupanc3-.(2)(6)  Moreover,  inasmuch 
as  lands  and  goods,  upon  failure  of  heirs,  follow  the  same  destination, 
if  escheat  is  an  infallible  symptom  of  feudality,  we  must  admit  that  Qvery 
merchant  holds  his  stock  in  trade  by  a  feudal  tenure. 

14.  The  absolute  ownership  of  a  tenant  in  fee  simple  is  indeed  sub- 
ject to  one  other  qualification,  which  may,  in  this  connection,  be  briefly 
noticed.  This,  however,  is  not  an  existing  paramount  title  in  the 
government,  but  a  mere  poioer,  to  be  exercised  on  the  happening  of  a 
future  contingency.  We  refer  to  the  power  on  the  part  of  the  govern- 
ment, common  to  the  United  States  and  all  other  civilized  nations,  of 
taking  private  property  for  public  purposes,  subject  to  the  obligation 
expressly  imposed  by  the  constitution  of  every  State,  of  paying  a  fair 
compensation  therefor.  This  right  is  termed  the  right  of  eminent  do- 
main. It  is  exercised  in  a  variety  of  instances,  but  for  the  most  part 
in  the  taking  of  private  lands  for  highways,  turnpikes,  canals  and  rail- 
roads.    The  subject  will  be  noticed  in  a  future  portion  of  this  work. 

(1)  Clay  V.  White,  1  Mun.  110. 

(2)  Sarah   Desilver,  5  Rawle,    112-3;  10  Gill.  &  J.  443. 


(a)  "  "When  the  early  settlers  of  Massachusetts,  holding  their  lands  under  the  freest  and 
most  liberal  English  tenure,  that  of  tenants  in  fee  simple  in  free  and  common  socage,  were 
making  provision  for  granting  and  taking  titles  to  real  estate  for  themselves  and  their  pos- 
terity, and  when  a  certain  valuable  right  and  interest  was  annexed  to  and  made  part  of 
such  grants  of  estate  by  the  government,  competent  to  impress  such  character  upon  it ; 
they  understood,  both  those  who  made  and  those  who  proceeded  to  take  titles  and  settle  the 
country  under  such  grants,  that  the  grantees  acquired  a  legal  right  and  vested  interest  in 
the  soil,  and  not  a  mere  permissive  indulgence  or  gratuitous  license,  given  without  con- 
sideration, and  to  be  revoked  and  annulled  at  the  pleasure  of  those  who  gave  it."  Per 
Shaw,  C.  J.,  Com.  v.  Alger,  7  Cush.  71. 

{h)  In  the  foregoing  remarks,  I  would  by  no  means  be  understood  to  undervalue  the  im- 
portance of  studying  the  Feudal  Law  (so  earnestly  contended  for  by  the  learned  author  of 
'■  a  Course  of  Legal  Study  "),  as  matter  of  history,  or  as  furnishing  an  explanation  of  some 
principles  now  in  force.  '  Let  it  be  deeply  inquired  into,  like  the  History  of  England,  or  the 
Civil  Law,  by  the  ingenuous  and  philosophical  student.  I  have  merely  wished  to  explain 
why  it  is  omitted  as  a  constituent  portion  of  American  Law.  The  observations  already 
made  upon  the  subject  may  properly  be  closed  by  the  following  forcible  remarks  of  Chan- 
cellor Kent,  showing  conclusively  that  the  American  student  is  not  to  neglect  the  study  of 
the  feudal  law.  "It  is  a  singular  fact — a  sort  of  anomaly  in  the  history  of  jurisprudence — 
that  the  curious  inventions,  and  subtle,  profound,  but  solid  distinctions,  which  guarded  and 
cherished  the  rights  and  remedies  attached  to  real  property,  in  the  feudal  ages,  should 
have  been  transported,  and  should  for  so  long  a  time  remain  rooted  in  soils  that  never  felt 
the  fabric  of  the  feudal  system ;  whilst,  on  the  other  hand,  the  Englisli  parliamentary  com- 
missioners, in  their  report,  proposed,  and  Parliament  executed,  a  sweeping  abolition  of  the 
whole  formidable  catalogue  of  writs  of  right,  writs  of  entry,  writs  of  assize,  and  all  the  other 
writs  in  real  actions,  with  the  single  exception  of  writs  of  dower,  and  quare  impediV 
4  Kent,  70-1,  n. 


CHAP.  II.]  ESTATES  IN  LAND.     ESTATE  IN  FEE  SIMPLE.  41 

15.  In  view  of  the  foregoing  considerations,  it  may  safely  be  laiJ 
down,  that  one  who  holds  lands  in  fee  simple  is  the  absolute  owner. 
The  methods  of  acquiring  this  title  will  be  treated  of  hereafter. 

16.  An  owner  in  fee  simple,  as  well  as  of  every  other4Fechold  estate, 
is  said  to  be  seized ;  while  the  owner  of  an  estate  less  than  freehold  has 
jiossession  merely,  and  not  seizin.  Anciently,  the  possession  of  a  feud 
was  called  seizin,  denoting  the  completion  of  the  investiture  by  which 
the  tenant  was  admitted  to  the  feud.  Upon  the  introduction  of  the 
feudal  law  into  England,  this  word  was  only  applied  to  the  possession  of 
an  estate  oi^  frceJiohl ;  in  contra-distinction  to  that  precarious  kind  of 
jiossession  by  which  tenants  in  villenarje  held  their  lands  ;  which  was 
considered  to  be  the  possession  of  their  lords,  in  whom  the  freehold 
continued. (a) 

17.  Seizin  is  of  two  kinds — seizin  in  deed,  or  as  Lord  Coke  terms  it, 
"a  natural  seizin  ;"  and  seizin  in  law,  or  "a  civil  seizin."  The  former 
is  actual  jMssession  of  a  freehold  ;  the  latter  a  legal  right  to  such  posses- 
sion. Formerly  seizin  in  deed  could  be  acquired  only  by  an  actual 
occupation.  In  case  of  a  purchase  or  conveyance,  the  ceremony  of 
livery  of  seizin  was  required  to  vest  a  title ;  and,  in  case  of  descent,  the 
heir  was  not  seized  in  deed,  until  he  had  by  himself  or  another  actually 
entered  on  the  land. 

18.  How  far  these  principles  are  in  force  in  the  United  States,  will 
be  more  particularly  considered  hereafter.(5)  It  is  sufficient  to  say  here, 
that  for  most  purposes  an  heir  is  considered  as  actually  seized,  without 
entry,  and  that  a  conveyance,  by  deed,  executed,  acknowledged  and  re- 
corded, or,  in  general,  by  a  patent  under  the  seal  of  the  Commonwealth, 
if  there  be  no  adverse  possession,  gives  a  seizin  in  deed,  ivithout  entry. {l){c) 
Therecordingofadeedisthelegalequivalent  for  livery  of  seizin. (2)   And 


(1)  Pidge  V.  Tyler,  4  Mass.  546 ;  Knox  v. 
Jeiiks,  7,  494;  Goodwin  v.  Hubbard,  15, 
214;  Clay  v.  White,  1  Mun.  170. 


(2)  Barr  v.  Galloway,  1  McLean,  476; 
Prop'rs.  &c.  V.  Permit,  8  N.  H.  512 ;  4  Mass. 
546;  Ward  v.  Fuller,  15  Pick.  185. 


(a)  A  tenant  in  fee  cannot  maintain  an  action  for  the  freehold,  as  distinct  therefrom.  So 
with  n  tenant  in  tail.  Webster  v.  Oilman,  1  Story  R.  499.  See  Howe  v.  Wildes,  34  Maine, 
566.  If  a  tenant  for  life  die,  pending  a  suit  for  the  land,  the  court  may  render  judgment ; 
and,  if  heirs  succeed  to  the  title,  may  issue  execution  in  their  favor.  Wilson  v.  Hall,  13 
Ired.  489. 

{h)  See  Deed,  Descent,  Livery  of  Seizin. 

(c)  So,  in  Massachusetts,  a  devisee  of  vacant  land  may  maintain  a  writ  of  entry  therefor, 
without  an  actual  entry.     Green  v.  Chelsea,  24  Pick,  71. 

So  the  levy  pf  an  execution  upon  land  of  the  debtor  gives  the  creditor  actual  seizin. 
Munroe  v.  Luke,  1  Mot.  462  ;  Blood  v.  Wood,  lb.  534.  But  if  an  execution  against  A  is 
levied  on  land  of  B,  B  is  not  so  far  disseized,  that  he  cannot  bring  trespass,  without  re-entry, 
against  .he  judgment  creditor  or  those  acting  under  him.     Blood  v.  Wood,  1  Met.  528. 

And  a  mixed  possession  of  land,  under  a  deed  from  one  without  title,  does  not  convey  a 
seizin,  as  against  one  claiming  by  virtue  of  a  like  possession.  Magoun  v.  Lapham,  21 
Pick.  135. 

If  the  land  of  a  debtor  was  attached  upon  the  original  writ,  by  the  levy  of  his  execution, 
the  creditor  gains  the  same  seizin  as  if  the  debtor  had  given  him  a  deed  at  the  time  of 
attachment.  Bryant  v.  Tucker,  1  Appl.  383.  Nason  v.  Grant,  8  Shepl.  160.  By  such 
lev_v,  the  debtor  becomes  a  tenant  at  will ;  and,  if  he  resists  the  creditor's  entry,  may  be 
treated  as  a  disseizor  at  his  election.  lb.  To  vest  the  title  to  real  estate  in  the  creditor 
wlio  levies  an  execution  upon  it,  there  must  be  a  delivery  of  seizin  to  him,  and,  if  he  refuse 
to  receive  seizin,  the  previous  proceedings  in  making  the  levy  will  not  operate  to  satisfy  the 
execution.     Jackson  v.  Woodman,  29  Maine,  266. 

The  delivery  of  seizin  must  be  shown  by  the  return  of  the  officer,  and  the  declarations  of 
the  creditor  arc  not  evidence  upon  the  question  of  title.     lb. 


42 


ESTATES  IN  LAXD.     ESTATE  IN  FEE  SIMPLE. 


[CHAP.  II. 


a  deed  diil}^  acknowledged  and  recorded,  is  prima  facie  evidence  of 
seizin  in  the  grantor  and  in  the  grantee.  In  Ohio,  Massachusetts,  and 
Connecticut  (and  the  law  is  the  same,  it  seems,  in  Pennsylvania,)  it  is 
said,  seizin  means  nothing  more  than  ownership.  It  is  further  remarked, 
that  there  is  no  distinction  between  seizin  in  law  and  seizin  in  deed, 
and,  in  Ohio,  that  entry  probably  is  not  necessary  to  complete  the  title 
of  an  heir.{l){a) 

19.  But  where  one  gave  a  deed  of  wild  land,  having  no  title,  although 
the  deed  was  acknowledged  and  recorded,  and  the  grantee  entered,  but 
exercised  no  open  and  exclusive  ownership  by  fencing  or  otherwise  ; 
it  was  held,  that  these  facts  did  not  give  an  adverse  seizin  against  the 
will  of  the  owner,  the  registration  not  being  constructive  notice  to 
him.(2) 

20.  In  Kentucky,  a,  patent  of  lands  by  the  Commonwealth  gives  only 
a  right  of  entry,  not  actual  seizin.(3) 

21.  Entry,  to  give  seizin,  may  be  made  by  the  owner,  or  by  his 
agent.(Z))  The  entry  must  be  made,  not  by  consent,  invitation  or  hos- 
pitality of  the  occupant,  as,  for  instance,  to  remove  the  goods  of  the 
party  entering;  but  with  the  intent  to  gain  seizin — animo  clamandi — ' 
and  accompanied  by  some  act  or  declaration  showing  such  intent,  and 
challenging  the  right  of  the  occupant.  The  intent  is  a  question  for  the 
jury.  If  the  entry  is  such  as  would  be  a  trespass  in  a  mere  stranger, 
it  is  effectual ;  otherwise,  not.  If  there  be  no  one  residing  on  the  land, 
it  is  not  necessary  to  seek  the  adverse  occupant  and  give  notice  of  the 
claim  under  which  entry  is  made.  If  made  by  an  agent,  it  is  the  usual 
and  perhaps  most  prudent  course,  to  give  him  a  power  of  attorney  under 
seal.  But  a  general  agency  is  sufficient  authority  ;  and  if  the  principal 
bring  a  suit  founded  on  the  entry,  this  ratification  is  sufficient,  without 
previous  authority.  (4) 

22.  And  where  an  agent  was  empowered  by  the  owners  of  certain 
unoccupied  land  to  "  look  up  the  land  for  them,"  and  entered  to  survey 
and  take  possession,  without  making  any  declaration  of  his  intent ;  held, 
such  declaration  was  unnecessary.(5) 

23.  If  one  disseized,  having  a  right  of  entry,  enter  and  give  a  deed 
on  the  land,  the  deed  is  effectual  to  pass  a  title.(6)  So  if  one  disseized, 
having  the  right  of  entry,  enters  peaceably,  the  land  being  vacant,  and 
takes  possession  under  his  title  ;  and  the  disseizor  or  others  afterwards 
break  and  enter  the  premises ;  the  disseizee  may  bring  an  action  of 
trespass  against  them. (7) 


(1)  Walk.  Intro.  324,  330 ;  Bush  v.  Brad- 
ley, 4  Day,  305-6 ;  Cook  v.  Hammond,  4 
Mass.  489. 

(2)  Bates  v.  Norcross,  14  Pick.  224. 

(3)  Speed  v.  Buford,  3  Bibb,  57.  See  Rogers 
V.  Moore,  9  B.  Mon.  40  L ;  Hinman  v.  Cevan- 
way,  9  Barr,  40 ;  Steadman  v.  Hilliard,  3 
Rich.  101. 

(4)  Richardsv.Folsom, 2  Fairf.  TO;  Stearns, 


45 ;  Co.  Lit.  245,  b ;  Plow.  92-3.  In  Eng- 
land, an  authority  to  deliver  seizin  must  be 
by  deed.  Co.  Lit.  52.  a ;  See  Alteraas  v. 
Campbell,  9  Watts,  28;  Holly  v.  Brown,  14 
Conn.  255  ;  Campbell  v.  Wallace,  12  N.  H. 
162  ;  Cowan  v.  Wheeler,  31  Maine,  439. 

(5)  Tolman  v.  Emerson,  4  Pick.  160. 

(6)  Cakes  v.  Marcy,  10  Pick.  195. 

(7)  Tyler  v.  Smith,  8  Met.  599. 


(a)  Seizin  is  possession,  under  an  express  or  implied  claim  of  freehold.  Towle  v.  Ayer, 
8  N.  H.  57  ;  Straw  v.  Jones,  9,  400.  When  used  in  statutes,  it  may  have  an  enlarged  signi- 
fication, if  necessary,  to  effect  the  intent.     Matthews  v.  Ward,  10  Gill  &  J.  443. 

(&)  So  an  occupation  for  20  years  by  an  agent  gives  a  good  title.  Goodwin  v.  Sawyer, 
33  Maine,  541. 


CHAP.  II.]  ESTATES  IN  LAND.     ESTATE  IN  FEE  SIMPLE. 


43 


24.  Where  one  enters  on  land  claiming  no  title,  he  gains  no  seizin 
but  by  ousting  the  occupant,  and  not  beyond  his  actual  possession. 
But  if  there  is  a  claim  and  color  of  title,  especially  if  clearly  defined 
in  extent,  entry  on  a  part  may  give  seizin  of  all  to  which,  the  title  ex- 
tends, although  the  land  be  not  enclosed,  provided  there  is  no  adverse 
possession. (l)(a) 

24a.  The  general  principle  applies,  only  where  the  quantity  of  the 
land  and  the  attendant  circumstances,  reasonably  induce  the  belief,  that 
the  land  was  bought  and  entered  upon  for  the  ordinary  purposes  of 
cultivation  and  use ;  but  not  where  a  person  takes  and  maintains  pos- 
session of  a  few  acres  in  an  uncultivated  township,  for  the  mere  pur- 
pose of  gaining  a  title  to  the  township  by  possession,  against  the  lawful 
o\vners.(2) 

24/;,  Adverse  possession,  under  a  claim  of  right,  extends  to  so  much 
of  the  land  within  another's  survey,  as  is  within  known  bounds,  up  to 


(1)  Ellicott  V.  Pearl,  10  Pet.  414;  1  McL.  214; 
Proprietors,  &c.  v.  Springer,  4  Mass.  418; 
Green  v.  Liter,  8  Cranch,  229  ;  Bank,  &c.  v. 
Smyers,  2  Strobh.  24;  Barr  v.  Gratz, 4  Wiioat. 
213;  iSlirieve  V.  Summers,  1  Dana,  239;  Far- 
rar  v.  Eastman,  1  Fairf.  191;  Tliompson  v. 
Milford,  7  Watts,  442  ;  Johnson  v.  Farlow,  13 
Ired.  84;  lloiser  v.  Rielile,  7  Watts,  35; 
Crovvell  v.  Bebee,  10  Verm  33:  Hubbard  v. 
Austin,  11,  129;  Griffith  v.  Dicken,  2  B.  Mon. 
24;  Shackleford  u.  Smith,  5  Dana,  239;  Wat- 
kins  V.  llolman,  16  Pet.  25;  Webb  v.  Sturt- 
evant,  1  Scam.  183;  Blackburn  v.  Baker,  7 


Por.  284;  Stearns  v.  Palmer,  10  Met.  32; 
Osborne  v.  Ballew,  12  Ired.  373;  Moor  v. 
Campbell,  15  N.  H.  208;  Waggoner  v.  Hast- 
ings, 5  Barr.  300  ;  Kite  v.  Brown,  lb.  291 ; 
Bailey  V.  Carleton,  12  N.  H.  9;  Doe  v.  Mc- 
Cleary,  2  Cart.  405 ;  Noyes  v.  Dyer,  25  Maine, 
4G8;  Northrop  v.  Wright,  7  Hill,  476; 
Putnam  V.  Fisher,  34  Maine,  172;  Altemus 
V.  Long,  4  Barr,  254;  Saxion  v.  Hunt,  1 
Spencer,  487;  Yirg.  Code,  560;  Misso.  Sts. 
1847,  55. 
(2)  Chandler  v.  Spear,  22  Verm.  388. 


(a)  Lord  Coke  seems  to  limit  the  latter  principle  tq,  the  case,  where  an  entry  is  made 
merely  to  complete  a  seizin  in  law,  like  that  of  an  heir ;  and  to  regard  it  as  inapplicable 
where  the  entry  is  adverse,  as  by  a  disseizee,  or  a  feoffor  for  condition  broken.  But  he 
elsewhere  explains  the  distinction  between  a  bare  title,  such  as  a  condition,  involving  no  in- 
terest in,  or  right  of  action  for  the  land,  and  the  claim  of  a  disseizee.    Co.  Lit.  15  a,  252  b. 

Where  a  rightful  owner  enters  upon  part  of  the  land,  this  will  be  sufficient  for  the  whole, 
although  another  person,  having  no  color  of  title,  enters  upon  the  vacant  portion.  Hubbard 
V.  Austin,  11  Verm.  129.  See  Ralph  v.  Bayley,  lb.  521.  A  statute  of  limitation  gives 
title  not  only  to  such  part  of  the  land  as  is  enclosed  and  cultivated,  but  to  all  which  is  ad- 
vantageou.sly  u.sed  as  a  portion  of  the  farm — as,  for  instance,  woodland.  Lawrence  i'.  Hunter, 
9  Watt.s,  64.  So,  to  all  the  lands  included  in  marked  lines.  Bell  v.  Hartley,  4  U.  &  S. 
32.  See  M'Call  v.  Coover,  lb.  151 ;  M'Caffrey  v.  Fisher,  lb.  181.  Where  two  distinct 
grants  or  deeds  Uip,  and  neither  party  is  in  possession  of  the  lapped  portion,  the  law  gives 
it  to  tlio  owner  of  the  better  title.  But,  if  one  is  in  po.''session,  he  is  the  exclusive  owner. 
Williams  v.  Buchanan,  1  Ired.  535.  SeeSmiih  v.  Ingram,  7, 175.  In  case  of  a  demise  of  mines 
and  minerals  upon  a  long  tract  of  waste,  working  under  a  part  gives  legal  possession  of  the 
whole.    Taylor  i-.  Parr}^  1  Man.  &  G.  604. 

An  entry  upon  a  tract  of  land,  under  a  survey  bill  or  record,  giving  a  deQnito  and  certain 
extent  to  the  land,  and  the  occupation  of  part  of  the  land,  without  evidence  to  limit  or  restrict 
the  possession,  will  give  constructive  possession  of  tho  whole  tract  surveyed.  But  this  may 
be  restricted  and  controlled  by  evidence  of  the  acts  and  declarations  of  the  occupant. 
Brown  v.  Edson,  22  Verm.  357.  Where  one  enters  upon  wild  lands,  and  marks  out  bound- 
aries with  tho  intention  of  taking  possession,  the  possession  embraces  all  within  those 
boundaries.     Campbell  v.  Thomas,  9  B.  Mon.  82. 

A  tenant  put  in  possession  by  the  grantee,  without  definite  boundaries,  will  be  held  as 
in  posse.s.sion  of  the  whole  tract.     Ellicott  v.  Pearl,  1  McL.  214. 

Tlie  deed,  contract  or  plat,  under  which  possession  is  acquired,  constitutes  color  of  title, 
and  defines  or  show.s,the  extent  of  the  occupant's  claim.     Gray  v.  Bates,  3  Strobh.  493. 

The  rule,  that  one  in  actual  possession  of  part  of  a  tract  will  be  deemed  in  possession 
of  the  whole,  does  not  apply  as  against  the  real  owner,  who  is  also  in  possession  of  a  part. 
To  create  an  adverse  possession  as  against  such  owner,  there  must  be  actual  occupation. 
Cottle  V.  Sydnor,  10  Mis.  763. 


44 


ESTATES  IN  LAND.     ESTATE  IN  FEB  SIMPLE. 


[CHAP.  XL 


which  a  claim  has  been  made,  with  such  use  as  farmers  make  of  their 
farms,  by  one  residing  on  a  part  of  the  land  claimed  ;  although  his 
house  was  not  within  the  lines  of  the  survey,  and  the  land  was  not 
enclosed.(l) 

24  c.  A  party  entered  upon  two  tracts  of  wild  land,  cultivated  a 
very  small  portion  of  them  in  the  midst  of  the  woods,  and  held  them 
for  seven  years.  Held,  by  his  adverse  possession,  he  gained  a  title  to 
the  whole  of  the  tracts  included  in  his  fictitious  grants.(2) 

24  d.  The  owner  of  a  large  tract  of  land  made  a  parol  gift  of  it  to 
his  two  sons,  who,  with  him,  during  his  life,  for  more  than  fifteen  j^ears, 
occupied  the  land.  The  father  had  made  a  will  conformably  to  this 
gift,  but  afterwards  made  another  one,  not  altering  the  devise  to  his 
sons.  After  his  death,  the  sons  bring  a  joint  action  for  the  whole  land. 
Held,  their  adverse  possession  during  the  father's  life  included  only  the 
parts  enclosed  by  them,  there  being  no  deed  or  plat  giving  a  colorable 
title  to  the  whole  ;  and  that  their  joining  in  suit  did  not  strengthen 
their  claim,  they  being  mere  co-trespassers. (3) 

24  e.  Where  a  patentee  settles  a  tenant  upon  the  land  included  in  his 
patent,  without  limiting  his  possession,  he  has  a  constructive  possession 
of  the  whole.  But,  where  a  stranger  settles  upon  patented  land  with- 
out license  from  the  patentee,  an  intention  to  occupy  the  whole  may 
be  inferred,  but  is  not  a  presumption  of  law. (4) 

24/  A  small  improvement,  made  by  a  person  on  one  of  two  quarter 
sections  of  land,  which  were  distant  from  each  other  a  half  of  a  mile, 
is  no  authority  for  his  setting  up  an  adverse  possession  of  the  other 
quarter  section,  though  both  were  conveyed  to  him  by  the  same 
deed.  (5) 

24^.  An  entry  on  a  lot  of  land  b}^  the  owner,  to  survey  it  and  put 
up  monuments  of  boundaries,  gives  him  seizin,  as  against  wrong-doers, 
of  all  within  the  boundaries,  though  including  more  than  his  lot.(6) 

24//.  Where  one  person  is  seized,  entry  by  another,  claiming  under 
a  registered  deed,  upon  a  part  thereof,  does  not  constitute  a  disseizin  of 
the  whole  by  election,  unless  the  latter  continues  in  possession  of  the 
part  entered  upon. (7) 

24  i.  Where  one,  having  the  elder  title  to  land,  enters  under  his  deed, 
with  intent  to  take  possession  to  the  boundaries  of  his  deed,  he  is  in 
possession  to  that  extent,  though  another  person  be  in  possession  under 
a  junior  title  to  the  same  land,  but  outside  of  the  interference.(8) 

24y.  Where  one  goes  into  possession  of  land  under  a  survey,  and  by 
mistake  occupies  beyond  the  limits  of  the  survey,  the  possession  be- 
yond the  limits  of  the  survey  is  not  adverse,  and,  being  continued 
twenty  years,  will  give  him  no  right  against  the  owner.(9) 

24  k.  When  land  is  enclosed  by  a  river,  fence  or  road,  and  a  disseizor 
occupies  it  as  near  the  boundary  as  is  convenient,  considering  the 
nature  and  situation  of  the  land,  and  intends  to  occupy  the  whole  lot ; 
this  may  be  an  occupation  of  the  whole,  though  there  is  a  narrow  strip 
by  such  boundary  not  actually  cultivated.(lO) 


(1)  Fitch  V.  Mtinn,  8  Barr,  503. 

(2)  Lenoir  v.  South,  10  Ired.  237. 

(3)  Crolson  V.  Hook,  4  Strobh.  23. 

(4)  Wickhffe  v.  Eusor,  9  B.  Mon.  253. 

(5)  Stephenson  v.  Doe,  8  Blackf.  508. 

(6)  Parker  v.  Brown,  15  N.  H.  176. 


(7)  Robinson  v.  Brown.  32  Maine,  578. 

(8)  Grughler  v.  Whee^r,  12  B.  Mon.  183. 

(9)  Hunter  v.  Chrisman,  6  B.  Mon.  463. 

(10)  Allen  V.  Hoiton,  20  Pick.  458.     See 
Barker  v.  Salmon,  2  Met.  32. 


CHAP.  IL]  ESTATES  IN  LAND.     KSTxVTE  IN  FEE  SIMPLE. 


45 


24  I.  The  tenant  fenced  in  part  of  the  demandant's  land,  in  order  to 
protect  a  crop  on  his  own,  and  cut  a  tree  and  some  brushwood  on  this 
part,  but  without  intending  to  ckim  or  occupy,  or  exclude  the  demand- 
ant irom  it.  Held,  the  demandant  might  elect  to  considiTr  himself  di.s- 
scized.(l) 

25.  Entry  upon  land  must  ensue  or  correspond  with  the  party's  ac- 
tion for  its  recovery.  Hence,  one  entry  can  never  be  sufficient,  upon 
lands  lying  in  different  counties,  or  wrongfully  taken  by  different  dissei- 
zors, or  let  by  one  disseizor  to  ditferent  tenants ^or  life;  because  in  each 
of  these  cases  there  must  be  several  actions.  On  the  other  hand,  if  the 
lands  are  in  one  county,  let  by  one  disseizor  to  several  tenants  for  years, 
or  taken  by  one  disseizor  at  several  times  ;  one  entry  in  the  name  of  the 
whole  may  be  sufficient,  because  one  action  would  lie.  So,  where  one 
enters,  without  title,  on  a  tract  of  land  lying  in  two  counties,  in  one  of 
those  counties,  and  keeps  possession  of  the  same,  claiming  to  hold  the 
whole  tract ;  his  possession  extends  only  to  the  lines  of  the  county  in 
wdiich  the  entry  was  made.(2)  An  analogous  distinction  is  established  in 
England  as  to  livery  of  seizin.  But  it  is  said  not  to  appl}'',  where  one 
manor  extends  into  two  counties.     This  how^ever  is  doubted. (o)(a) 

26.  Where  an  heir  is  deterred  by  bodily  fear  from  entering  upon  the 
lands  descended  to  him,  it  will  be  sufficient  to  go  as  near  as  he  can  and 
claim  them ;  which  act  shall  be  repeated  once  in  a  year  (callc;d  in  the 
old  law  a  year  and  a  day),  and  is  then  called  continual  claim,  and  has 
the  effect  of  actual  entry. (4) 

27.  If  the  land  is  in  possession  of  a  tenant  for  years,  at  the  death  of 
the  ancestor,  the  heir  becomes  seized  in  deed,  without  entry  or  even  re- 
ceipt of  rent.  So  also  where  the  heir  is  an  infant,  and  the  land  is  in 
possession  of  his  guardian. (5) 

28.  If  the  laud  is  in  possession  of  a  tenant  for  life,  the  heir  becomes 
seized  of  the  rent  by  receipt  of  an  instalment ;  but  whether  of  the  land 
also,  has  been  doubted.(6) 

29.  Where,  after  the  ancestor's  death,  a  stranger  enters  upon  the 
land,  such  entry  is  termed  an  abatement,  and  defeats  the  seizin  in  law 
of  the  heir.  But  the  latter  may  regain  seizin  by  entry,  unless  the  aba- 
tor have  died  seized,  in  which  case  the  heir  must  in  general  resort  to 
an  action  to  recover  possession. (7) 

30.  In  some  cases,  however,  the  entry  of  a  party  without  title  does 
not  defeat  the  seizin  of  the  heir,  but  on  the  contrary  gives  him  a  seizin 
in  deed.  This  is  where  the  entry  may  be  supposed  to  be  not  adverse, 
but  amicable,  and  made  to  prevent  the  entry  of  strangers.  As  where 
a  mother,  or,  in  England,  a  younger  brother  enters.     And  even  the 


(1)  lb. 

(2)  Co.  Lit.  252  b  ;  Roberts  v.  Long,  12  B. 
Moil.  194. 

(3)  Lit.  Gl;  Co.  Lit.  50  a.  n.  2. 

(4)  1  Cruise,  42;  Stearns.  18.  By  St.  3&4 
Will.  4,  c.  27,  such  claim  is  irielTectual  to  pre- 


serve a  title,  without  actual  change  of  posses- 
sion. 

(5)  Co.  Lit.  15  a. 

(6)  lb. 

(7)  1  Cruise,  42. 


(a)  Littleton  places  this  rule  upon  the  ground  Hint  the  younger  son  claims  by  the  same  ti- 
ik  with  the  elder;  as  heft  to  his  father.     It  is  abolished  by  St.  3  &  4  Wra.  4,  c.  27,  s.  13. 


46  ESTATES  IN  LAND.    ESTATE  IX  FEE  SIMPLE.  [CHAP.  IL 

death  of  a  party  so  euteriug  will  not  prevent  an  entry  by  the  heir.(l)(a) 
So,  when  land  descends  to  several  heirs,  a  part  of  whom  enter  thereup- 
on, their  entry  is  presumed  to  be  according  to  their  legal  title,  and  en- 
ures to  the  benefit  of  all,  so  that  all  are  seized,  unless  those  who  enter 
claim  adversely  and  oust  the  others.(2) 

Si.  It  may  not  be  unimportant  to  notice  the  distinction  between  sei- 
zin in  law  and  by  opei-ation  of  law  ;  and  between  seizin  in  deed,  and  by 
deed  or  by  j)icrchase.{b)  It  has  been  seen  that  an  heir,  who  cLiims  by 
operation  of  law,  is  seized  only  in  law,  until  actual  entry.  But  there 
are  other  cases,  hereafter  to  be  more  particularly  noticed,  where  a  par- 
ty, coming  to  an  estate  by  operation  of  law,  is  seized  in  deed  without 
entry  or  any  other  formality.  Thus  a  tenant  by  the  curtesy,  upon  the 
death  of  the  wife,  becomes  fully  seized  by  mere  operation  of  law.  So 
in  the  case  of  dower,  although  the  widow  does  not  perfect  her  title  un- 
til an  actual  assignment  is  made,  yet,  when  made,  her  title  relates  back 
to  the  death  of  the  husband ;  she  holds,  not  by  the  assignment,  but  by 
law,  and  merely  in  continuation  of  the  husband's  estate. 

32.  The  reason  of  these  rules  is  obvious.  Although  neither  husband 
nor  wife  acquires  a  complete  title  till  the  death  of  the  party  from  whom 
such  title  is  derived  ;  yet  both  acquire  an  initiate  title  before  that  event — 
the  one  upon  marriage  and  birth  of  issue,  the  other  by  marriage  alone. 
And  the  husband  by  his  own  possession,  and  the  wife  by  her  husband's 
possession,  may  be  regarded  as  actually  seized  during  the  marriage. 

33.  Intimately  connected  with  the  subject  of  seizin  is  that  of  disseizin  ; 
of  which  it  has  been  remarked(3)  "there  is  scarcely  a  subject  in  the 
English  law  so  obscure."  This  observation  of  an  English  writer,  de- 
rives additional  force  from  the  various  and  conflicting  decisions  upon 
the  subject,  to  be  found  in  the  American  cases. 

34.  Disseizin  is  defined  as  a  wrongful  putting  out  of  him  that  is  seized  of 

(1)  Lit.  s.  396  ;  Gilb.  Ten.  2S  ;  Doe  r.  Keen,  [  (3)  1  Cruise.  43  ;  "Watson  v.  Gregg,  10 
1  T.  R.  386:  (See  3  Xev.  A  M.  331 ;)  Bur-  Watts,  2S9  ;  Graffiua  v.  Tonenham,  1  Watta 
rows  1-.  Holt.  20  Conn.  459.  k  S.  4SS. 

(2)  Means  v.  "Welles,  12  Met  356.  I 


(a)  The  owner  of  a  farm  died  in  177S,  leaving  his  widow  and  ten  children  in  possession. 
The  tenant,  one  of  his  sons,  then  seventeen  years  of  age,  carried  on  the  farm,  living  there, 
with  the  co-heirs,  until  1793,  when  the  rest  of  the  heirs  went  away.  His  sisters  having 
married,  he  was  left  in  possession  of  the  farm,  which  he  continued  to  manage  until  his  death, 
in  1S22.  It  did  not  appear  that  he  ever  made  any  claim  of  title  to  the  whole  fiirm.  Held, 
he  acquired  no  title  by  adverse  possession.     Campbell  i'.  Campbell,  13  !X.  H.  4S3.   • 

Where  land  is  stf^  of  to  two  persons  jointly,  the  possession  of  one,  claiming  the  whole,  is 
not  adverse  to  the  other,  within  the  statute  of  limitations.  Brooks  v.  Towle,"l4  X.  H.  248. 
So  an  entry  by  one  corenant  gives  seizin  to  all  in  the  whole  lauds,  according  to  llieir  re- 
spective titles.  Thomas  r.  Hatch,  3  Sumn.  170.  So  if  a  disseizor,  after  five  years'  posses- 
sion, give  up  to  one  tenant  in  common  all  the  title  of  the  latter  to  the  land;  the  title  of  all 
the  tenants  revests  in  them.     Taughan  v.  Bacon,  3  Shepl.  455  * 

A  judgment  was  recovered  in  the  name,  and  with  the  knowledge  and  consent  of  A.  for 
the  benefit  of  B :  execution  issued,  and  land  was  thereupon  set  off  to  A.  possession  received 
by  B  as  his  attorney,  and  the  land  was  held  and  occupied  by  B.  with  the  knowledge  of  A.  for 
over  20  vears.  Held.  B  did  ftot  gain  a  title  by  disseizin,  suSicientlv  to  sustain  a  writ  of  en- 
try,    Peabodr  r.  Tarbell,  2  Cush.  226. 

Upon  a  somewhat  similar  principle,  a  party  in  possession  of  land,  holding  under  another 
person,  cannot  render  his  possession  adverse,  except  by  an  open  and  notorious  act.  If  he 
take  a  secret  conveyance  in  fee  of  the  land  from  one  claiming  ^o  be  owner,  and  keep  it 
secret,  the  character  of  his  possession  is  not  changed,     Sharpe  r,  Kelley,  6  Denio,  431, 

(d)  See  1  Steph.  367,  n. 


CHAP,  tl.]  ESTATES  IK  LAND.     ESTATE  IN  EKE  SIMPLE.  4'/ 

the  freeliokl  ;(1)  or  it  is,  "  where  a  man  entercth  into  lands  or  tenements, 
where  his  entry  is  not  covgcable  (i.  e.,  by  leave  or  permission)  and 
ousteth  hitn  whieh  hath  tlie  l'reehold."(2) 

35.  To  constitute  disseizin,  it  is  held,  that  an  cntrymust  be  at  (he 
time  under  claim  or  color  of  title ;(«)  otherwise  it  is  a  mere  trespass.  It 
must  be  such  as  to  raise  the  presumption  of  a  deed.  If  made  under 
a  deed,  the  character  of  the  possession  may  be  shown  by  the  terms  of 
the  deed,  If  these  are  indefinite,  they  will  not  control  the  extent  of 
actual  occupancy.  So  entry  by  a  party  as  purchaser  under  a  jutlgment 
is  a  disseizin.  The  intention  guides  the  entry,  and  fixes  its  character. 
Adverse  possession  must  be  continued^  uninten-ujjtcd,  notorious,  and  ex- 
clusive ;  and  the  burden  of  proof  is  on  the  party  alleging  it  to  be  so. 
To  make  a  continuity  in  successive  persons,  there  must  be  privity 
of  blootl,  contract  or  estate.  As  has  been  stated,  disseizin  may  be 
proved  by  a  conveyance,  though  defective,  and  disproved  by  an 
offer  of  purchase,  or  any  act  or  declaration  implying  recognition  of 
another's  title.  Whether  possession  under  an  executory  contract  to 
purchase  can  be  deemed  adverse,  is  a  point  left  somewhat  doubtful.(/>) 


(1)  Taylor  v.  Horde,  1  Burr,  110;  n  very 
leading  case  upon  this  subject,  the  prominent 
doctrine  of  which  is,  that,  except  in  cases  of 
actual  forcible  dispossession,  it  shall  depend 
upon  the  election  of  the  owner,  whether  an 


But  see  2  Prest.  on  Abstr.  279;  Prescott  v. 
Nevers,  4  Mass.  326 ;  Towle  v.  Ayer,  8  N.  II, 
57.  "Whether  every  possession  of  the  land  of 
another  is  not  prima  facie  adverse,  until  the 
contrary  is  proved — qucere.    Conyers  v.  Kenan, 


interference  with  his  title  shall  constitute  dis-    4  Geo.  308.     There  cannot  be  two  seizins  of 

seizin.     Ace.  Jewitt  v.  Ware,  3  Price,  535;    the  same  land.     Putnam,  &c.  v.  Fisher,  34 

Blowdcr  r.  Baugb,  Cro.  Car.  302  ;  (.Joodright    Maine,  172. 

V.  Forester,  1  Taun.  578 ;  Doe  v.  Lynes,  3  B.        (2)  Lit.  sec.  279. 

&  C.  388 ;  Bonhani  i-.  Badgley,  2  Gilm.  622  ;  ' 


(rt)  As  under  a  grant,  though  void  for  irregularity,  if  the  deed  and  entry  are  bona  fide. 
Moody  V.  Fleming,  4  Geo.  115;  Macklot  v.  Dubrenil,  9  Miss,  477  ;  Noyes  v.  Dyer,  25  Maine, 
468.  But  a  deed  void  on  its  face  has  been  held  insuEQcieut.  Simpson  v.  Downing,  23 
Wend.  316. 

If  a  person  enters  into  possession  of  land  under  one  title,  and  afterwards  purchases  in  an 
adverse  claim,  his  subsequent  possession  will  not  be  regarded  as  adverse  to  his  former  titk-, 
but  under  both.     So  of  those  claiming  under  him.     Pleak  v.  Chambers,  7  B.  Mon.  5G5. 

Where  a  parly  is  in  actual  pos.session,  and  has  a  right  to  possession  under  a  legal  title 
which  is  not  adverse,  but  claims  the  possession  under  another  title  which  is  adverse,  the 
possession  will  not  be  deemed  adverse.     Nichols  v.  Reynolds,  1  Angell,  30. 

A  sherilY's  deed,  without  producing  the  judgment  and  execution  under  which  the  land 
was  sold,  is  sufficient  to  show  the  character  of  the  grantee  who  claims  under  it,  and  renders 
his  possession  adverse.     Riggs  v.  Dooley,  7  B.  Moii.  236. 

And  where  the  grantee  in  such  deed  went  into  possession,  before  he  obtained  the  deed, 
under  a  purchase  from  two  of  live  heirs;  held,  the  statute  of  limitations  began  to  run  against 
the  others  from  the  time  of  notice  of  the  adverse  holding.     lb. 

{h)  Thus  in  Massachusetts  it  has  been  held,  that  in  case  of  an  agreement  to  buy  and  sell, 
no  pa}  ment  made  or  deed  given,  and  an  entry  by  the  purchaser,  he  is  presumed  to  enter  by 
consent,  and  holds  as  tenant  at  will.  But  if  payment  is  made,  and  consent  given  for  the 
purchaser  to  enter  and  hold  the  land  as  his  own,  but  the  deed  is  delayed,  accidentally  or  for 
convenience,  and  with  the  agreement  to  give  it  without  further  consideration  or  condition, 
and  possession  taken;  this  is  a  disseizin.  Brown  v.  King,  5  Met.  173  ;  ace.  Fosgate  v.  Her- 
kimer, &c.,  12  Barb,  c  62;  and.seeSellersi\Haye3,17  Ala.  749;  Fainv.Garthnght,  5  Geo.  6.  So, 
in  South  Carolina,  he  who  goes  into  possession  of  land,  under  a  contract  to  purchase,  holds 
the  land  adversely  to  the  claims  of  all  other  persons,  except  him  from  whom  he  bought; 
and  his  possessions,  both  before  and  after  he  receives  titles,  may  be  coupled  together,  to 
make  up  a  statutory  title.  Bank,  Ac.  v.  Smyers,  2  Strobh.  24.  Contined  possession  under 
a  license  from  the  owner  gives  a  title.     Pope  v.  Henry,  24  Verm.  500. 

On  the  other  hand,  tf  a  vendor  continue  in  possession  after  giving  a  deed,  he  is  a  tenant 
at  will,  unless  there  be  an  exphcit  disclaimer  of  the  relation.  If  ho  deny  the  title  and  resist 
the  claim  of  the  vendee,  the  latter  may  at  his  election  sue  liirn  as  a  disseizor.     Burhana  v. 


48  ESTATES  IN  LAND.     ESTATE  IN  FEE  SIMPLE.  [CHAP.  II. 

If  a  lessee  'pour  autre  vie  hold  over,  under  the  false  representation 
that  the  cestui  que  vie  is  living;  his  possession  is  not  adverse.  But 
where  the  husband  of  a  woman,  tenant  for  life,  held  the  land  for  twenty 
years  from  her  decease  ;  held,  he  thereby  acquired  a  good  adverse  title. 
The  general  rule  is,  that  when  seizin  is  once  proved,  it  is  presumed  to 
continue  till  some  adverse  possession  is  shown,  and  prima  facie  evidence 
of  disseizin  is  not  sufficient  to  change  the  burden  of  proof!  So  a  pos- 
session originally  adverse  is  presumed  to  continue  so.  A  fe??a7?^  cannot 
disseize  his  landlord,  but  at  the  election  of  the  latter,  unless  he  give 
notice,  or  make  some  change  in  his  mode  of  occupation,  which  may 
put  the  landlord  on  his  guard.  His  declaration  to  a  stranger  is  no  evi- 
dence of  disseizin.(l)(a) 

(1)  Ripley  ?7.  Tale,  18  Verm.  220;  Rung  f  Aid  en  v.  Gilmore,  1  Shepl.  178;  Crane  v. 
V.  Slioneberger,  2  "Watts,  23;  Stillman  v.  i  Marshall,  4  lb.  27  ;  Stearns?;.  Godfrey  lb.  158; 
White,  &c.,  W.  &  M.  538;  Corwin  v.  Corwin,  I  Dowt).  Plummer,  5  lb.  14;  Kingf.  Axbridge, 
9  Barb.  219;  Fosgate  v.  Herkimer,  &c.,  lb.  \  4  Nev.  &  M.  477  ;  Doe  v.  Gregory,  lb.  308 ; 
287  ;  Lane  v.  Gould,  10  Barb,  254;  Mitchell ''  South,  ko.  v.  Blakeslee,  13  Conn.  227  ;  Wick- 
i'.  Lite,  8  Yerg.  179;  Ewing  v.  Burnett,  11  liffe  v.  Euson,  9  B.  Mon.  253;  Long  v.  Ma.st, 
Pet.  41 ;  Avery  i".  Baum,  Wright,  576 ;  Kin-  II  Penns.  189;  School,  &c.  v.  Benson,  31 
sell  V.  Daggett,  2  Fairf.  309  ;  Jackson  v.  John-  ;  Maine,  38  ;  Story  i;.  Saunders,  8  Humph.  663  ; 
son,  5  Cow.  74 ;  Tubb  v.  "Williams,  7  Humph.  ;  Stansbury  v.  Taggart,  3  McL.  457  ;  Peirson 
367';  Jones  v.  Chiles,  2  Dana,  31;  Miller?;,  'v.  Doe,  2  Carter,  123;  Clason  v.  Rankin,  1 
Lindsey,  1  McL.  33  ;  Thomas  v.  Hatch,  3  '  Duer,  337;  Fosgatev.  Herkimer,  &c.,  12  Barb. 
Sumn.  170;    Brower  v.  King,  5  Met.  173;  ;  352. 

Van  Zandt,  7  Barb.  91.  Carver  v.  Earl,  1  Shepl.  216.  See  Millay  v.  Milltiy,  6  lb.  387. 
Possession  for  over  seven  years  in  North  Carolina,  will  not  enable  such  vendor  to  maintain 
a  suit  for  the  land,  unless  he  show  a  subsequent  colorable  title,  and  occupation  under  it, 
which  he  is  not  estopped  from  doing.  Johnson  v.  Farlow,  13  Ired.  84.  Where  one  enters, 
claiming  title  under  a  parol  gift,  twenty  years'  possession  gives  him  the  absolute  ownership. 
Summer  v.  Stevens,  6  Met.  337.  So  where  an  execution  defendant  remains  in  possession 
of  the  land  sold,  such  possession  is  not  necessarily  permissive,  nor  is  he  estopped  from  set- 
ting it  up  as  adverse  ;  and,  if  continued  twenty  years,  it  gives  him  a  good  title.  Chalfin  v. 
Malone,  9  B.  Mon.  496. 

If  one  enter  upon  land  of  tenants  in  common  by  license  of  one  of  them,  and  erect 
and  occupy  a  building  thereon,  he  is  presumed  to  hold  under  them,  till  the  contrary  is 
proved.     Buckman  v.  Buckman,  30  Maine,  494. 

A  corporation  being  in  possession  of  land  as  tenants  of  the  crown,  a  grant  was  made  to 
the  corporation  by  the  colonial  governor,  alter  which  none  of  the  rents  in  the  lease  were 
paid,  which  befoi'e  had  been  paid,  but  only  tlie  quit  rents  reserved  in  the  grant ;  and  these 
were  finally  discontinued,  and  long  leases  made  by  the  corporation.  Held,  the  corporation 
were  in  possession,  not  as  tenants,  but  grantees,  of  the  crown  ;  and  acquired  a  perfect  and 
absolute  title  after  a  possession  of  one  hundred  and  forty  years.  Bogardus  v.  Trinitv,  &c., 
4  Sandf.  Ch.  633. 

In  1829,  land  was  leased  for  twenty-one  years  to  the  defendant.  He  applied  to  the  lessor 
for  leave  to  take  in  a  piece  of  ground  adjoining,  but  the  lessor  declined  to  permit  it,  stating 
that  other  persons,  purchasers  of  adjoining  houses,  had  a  right  of  way  over  the  ground. 
Tlie  defendant,  notwithstanding,  enclosed  and  for  twenty  years  occupied  it,  without  pay- 
ment of  rent  or  acknowledgment  of  title;  held,  the  piece  of  ground  was  no  part  of  the  de- 
mised premises  for  wliich  rent  was  paid,  and  therefore  an  action  by  the  lessor  was  barred 
by  St.  3  &  4  Will.  4  c.  27.     Palmer  v.  Eyre,  6  Eng.  L,  &  Eq.  355. 

Where  adverse  possession  for  thirty  years  is  admitted,  it  makes  no  difference  that  the 
entry  was  first  made  tlirough  a  mistake  of  boundaries.  Melvin  v.  Proprietors,  &c.,  5  Met. 
15  ;  ace.  Otis  V.  Moulton,  2  Appl.  205.  But  see  Proprietors,  &c.  v.  Day,  7  N.  H.  457 ;  Hale 
V.  Glidden.  10,  397.  So  one  may  claim  title  by  disseizin,  though  he  has  previously  relied 
upon  a  deed  which  does  not  include  the  premises.  lb.  And  see  Greenlaw  i;.  Greenlaw,  1 
Shepl.  182. 

Cvhr  of  title  maj  be  defined  to  be  a  writing,  upon  its  face  professing  to  pass  title,  but  which 
does  not  do  it,  eitiier  from  a  want  of  title  in  the  person  making  it  or  from  the  defective  con- 
vevance  that  is  used ;  a  title  that  is  imperfect,  but  not  so  obviously  so  that  it  would  be 
apparent  to  one  not  skilled  in  the  law.     Beverly  v.  Burke,  9  Geo.  440. 

(a)  Where  one  party  protested  against  the  acts  of  the  other,  during  the  possession  of  the 
latter,  and  consulted  counsel  in  regard  to  them ;   held,  the  possession  was  not  adverse. 


CITAP.  11.]  ESTATES  IN  LAND.     ESTATE  IN  FEE  SIMPLE.  49 

36,  In  Maine  and  Massachusetts,(l)  every  person  in  possession  of  land 
and  claiming  a  freehold,  or  claiming  less  than  a  freehold,^  if  he  has 
turned  or  kept  the  owner  out  of  possession,  may  be -treated  as  a  dis- 
seizor. Neither  force  nor  fraud  is  necessary  to  constitute  a  disseizin.(2) 
But  it  has  been  held  in  New  York,(a)  that  a  disseizin  which  will  casta 
descent^  so  as  to  toll  entnj,  (that  is  preclude  an  entry,  and  require  a?i 
action  by  the  true  owher  against  an  heir  of  the  disseizor)  must  be  a  dis- 
seizin in  fact,  expelling  the  true  owner  by  force  or  some  equivalent  act ; 
and  in  Pennsylvania,  that  adverse  possession  is  not  to  be  inferred,  but 
possession  is  presumed  to  be  in  subordination  to  the  legal  title.  The 
same  doctrine  is  held  in  Kentucky.(3) 

'67.  It  has  been  held  in  Massachusetts, (4)  that  actual  knowledge,  on 
the  part  of  the  owner  of  land,  of  an  adverse  occupation,  is  not  neces- 
sary to  constitute  disseizin.  It  is  enough  that  there  are  acts  in  their 
nature  public  and  notorious,  such  as  fencing  or  building  on  the  land. 
So,  it  has  been  held  in  the  Supreme  Court  of  the  United  States, 
that  no  acts  of  improvement  are  necessary  to  have  this  effect,  where 
there  has  been  an  entry  under  claim  and  color  of  title,  followed  by  a 
possession  for  twenty-one  years,  and  where  the  land  is  so  situated  as 
not  to  admit  of  improvement.(/^) 

(1)  Mass.  Rev.  Sts.  610-11 ;  Me.  lb.  GIO.    ,  bertson,  2  B.  Mon.  238. 


(2)  Small  V.  Proctor,  15  Mass.  495 ;   8  N. 
H.  57. 

(3)  Smith  V.  Burtis,  6  John.  197  ;  Rung  v. 
Shoneherger,  2  Watts,  23  ;  Robertson  v.  Ro- 


(4)  Poignard  v.  Smith,  6  Pick.  172  ;  Hap- 
good  V.  Burt,  4  Verm.  155;  Alden  v.  Gil- 
more,  1  Shepl.  178;  Ewing  v.  Burnett,  11 
Pet.  41. 


Stillraan  v.  "White,  &c.,  3  W.  &  M.  538.  Where  one  enclosed  with  his  own  land,  by  mis- 
take, land  of  an  adjoining  owner,  claimed  no  title  beyond  the  true  line,  and  did  not  prevent 
the  other  from  occupying  to  that  line ;  held,  not  a  disseizin.  Lincoln  v.  Edgecomb,  31 
Maine,  345. 

(a)  In  this  State  it  is  held,  that  an  adverse  possession  of  land,  so  as  to  vest  the  title, 
where  there  is  no  deed  or  written  instrument,  can  only  be  made  out  by  showing  a  real, 
substantial  enclosure,  an  actual  occupancy,  which  is  definite,  positive  and  notorious,  or  that 
the  premises  have  been  usually  cultivated  or  improved  ;  and  such  possession  must  be  regu- 
larly continued  and  accompanied  throughout  by  a  claim  of  title  for  twenty  years.  Lano 
V.  Gould,  10  Barb.  254.  By  tlie  new  Code  of  Procedure,  (pp.  33-4)  in  case  of  adverse  pos- 
session, founded  upon  a  writing  or  a  judgment;  possession  and  occuimtion  mean,  1,  that  the 
land  is  usually  cultivated  or  improved  ;  2,  protected  by  a  substantial  enclosure  ;  3,  if  not  en- 
closed, used  for  the  supply  of  fuel  or  fencing  timber,  for  purposes  of  husbandry,  or  the  ordi- 
nary "use  of  the  occupant.  Where  a  known  farm  or  single  lot  has  been  partly  improved, 
the  part  not  cleared,  or  not  enclosed,  according  to  usage,  is  held  to  be  occupied.  Otherwise, 
where  land  is  divided  into  separate  lots. 

In  case  of  continued,  actual  occupation  under  claim  of  title,  exclusive  of  any  other  right, 
and  not  founded  upon  a  writing  or' judgment,  a  title  is  gained  only  to  the  part  actually  oc- 
cupied ;  where  it  is,  1,  protected  by  a  substantial  enclosure ;  2,  usually  cultivated  or  im- 
proved. 

The  possession  of  a  tenant  is  that  of  his  landlord,  till  twenty  years  from  termination  of 
the  tenancy;  if  there  were  no  lease,  twenty  years  from  the  last  payment  of  rent;  though 
the  tenant  has  acquired  another  title  or  claimed  to  hold  adversely. 

(6)  In  Maine,  to  constitute  o  dis-seizin  which  would,  at  common  law,  defeat  the  deed 
of  the  proprietor,  there  must  be  an  occupancy  of  a  part  under  a  recorded  deed,  or  such  an 
open  and  visible  occupancy,  that  the  proprietor  may  at  once  be  presumed  to  know  the  ex- 
tent of  tlie  claim  and  occupation.     Foxcrofl  v.  Barne.s,  29  Maine,  128. 

An  occupation,  according  to  statutes  1821,  c.  G2,  and  Rev.  Sts.  c.  147,  does  not  constitute 
such  a  disseizin,  as  will  prevent  the  owner  from  conveying  his  land,  although  it  might  de- 
feat a  writ  of  entry  brought  by  the  owner  for  the  possession,  if  it  were  continued  for 
twenty  years.     lb. 

The  question  of  adverse  possession  is  not  for  the  court,  but  exclusively  for  the  jury. 
Hobart  v.  Hanrick,  16  Ala.  581 ;  Hatch  v.  Smith,  4  Barr,  109;    Grafton  v.    Grafton,  8.  S. 

Vol.  I.  4 


50 


ESTATES  IN  LAND.     ESTATE  IX  PEE  SIMPLE. 


[CHAP.  II. 


38.  It  is  said,  tliat  the  fencing(a)  or  enclosing  of  laud  has  no  peculiar 
efficacy  iu  regard  to  seizin.  It  merely  raises  a  presumption  ;  and  other 
acts,  such  as  raising  a  crop,  making  improvements,  or  felling  trees,(6) 
do  the  same.  So  the  erection  of  a  fence  on  wild  land,  hy  felling  trees 
and  lapping  them  together,  or  the  blazing  of  trees,  will  not  warrant  a 
jur}^  in  presuming  a  grant,  or  that  the  owner  of  the  land  had  notice 
thereof,  nor  does  it  constitute  a  disseizin.  So,  cutting  wood  on  wood- 
land for  use  and  sale,  clearing  land  for  cultivation,  running  lines,  mark- 
ing them  by  lopping  trees,  and  a  sale  of  part  of  the  land,  do  not  con- 
stitute disseizin,  though  done  with  notice  to  the  owner.  So  with  the 
payment  of  taxes,  suing  trespassers,  &c.  On  the  other  hand,  a  new 
parol  agreement  between  adjacent  owners,  upon  a  divisional  line,  fol- 
lowed by  a  corresponding  possession  of  one  party,  is  a  disseizin  of  the 
others.(l) 

38  a.  An  entry  upon  land,  in  order  to  take  possession  of  it  under  a 
claim  of  title,  and  marking  the  lines  by  spotting  the  trees  around  it,  is 
a  sufficient  possession  against  one  without  title;  although,  without 
actual  enclosure,  not  such  an  adverse  possession  against  the  owner  as 
to  bar  his  right  hy  the  statute  of  limitations. (2) 

38  b.  Upon  such  possession,  trespass  will  lie  for  an  entry  upon  the 
land  against  a  wrong-doer,  or  trover  lor  carrying  away  timber,  after  it 
has  been  cut  upon  the  land.(3)(c) 

38  c.  A  testator  devised  laud,  of  which  he  obtained  the  right  of 
possession  by  a  judgment  recovered  in  a  petition  for  partition,  alter 
legal  notice  to  parties  interested.  Held,  he  died  seized  of  the  land, 
although  others  who  claimed  title,  occasionally  entered  and  cut  wood 
upon  the  land,  after  the  judgment  of  partition. (4) 

38  d.  Clearing  and  cultivating  new  fields,  turning  out  old  ones,  when 
worn  out,  and  cutting  wood  promiscuously,  are  held  in  North  Carolina 
to  constitute  suflficieni  proof  of  adverse  possession.  So,  entering,  ditch- 
ing, and  making  woods  in  a  cypress  swamp,  in  order  to  procure  shin- 
gles, cutting  trees  and  making  shingles.(5) 

38  e.  In  an  action  of  trespass  for  cutting  timber  upon  a  lot  containing 


(I)  Ellicott  V.  Pearl,  10  Pet.  414  ;  Bishop 
V.Lee.  3  Barr.  214;  Slater  i;  Jepherson,  6 
Cush.  129;  Goburn  v.  HoUis,  3  Met.  125; 
Ewing  V.  Burnet.  1  McL.  266;  Boston,  «fee. 
V.  Sparhawk,  5  Met.  469;  Hale  v.  Glidden, 
10  N.  H.  397  ;  Urket  v.  Coryell,  5  W.  &  S. 
60.  JSee  Stearn.s  v.  Palmer,  10  Met.  32; 
Pasley   v.   English,    5   Gratt.    141;  Moor  v. 


Campbell,    15    K     H.     208;    Chandler    v. 
Walker,  1  Post.  (N.  H.)  282. 

(2)  Woods  V.  Banks,  14  K  H.  100. 

(3)  lb. 

(4)  Dascomb  v.  Davis,  5  Met.  335. 

(5)  Wallace   v.   Maxwell,    10    Ired.    110; 
Tread  well  v.  Reddick,  1  Ired.  56. 


&  M.  77.  Hence,  the  presiding  judge  cannot  properly  charge  the  jury,  that  the  plaintiff's 
possession  is  "uninterrupted,  continuous,  notorious,  sufficient  and  adverse."  But,  the  facts 
being  found  by  tlie  jury,  it  is  a  question  for  the  court.     Macklet  v.  Guhreuil,  9  Mis.  477. 

(a)  Kspecially  if  extending  bevond  the  true  line  by  accident.  Gilchrist  v.  McLaughhn,  7 
Ired.  310. 

(b)  Sometimes  termed  fugitive  trespasses.  Slice  v.  Derrick,  2  Pick.  127.  A  distinction  ia 
made  between  acts  of  tiiis  <l(scription,  and  a  possession  which  is  continued  so  far  as  is  prac- 
ticable; as.  in  case  of  a  stream  not  navigable,  by  keeping  up  fish-traps,  making  and  re- 
pairing dams,  and  catching  fish  every  year  through  the  fishing  season.  Treadwell  v. 
Reddick,  1  Ired.  56;  see  Flannikeii  v.  Lee.     lb.  293. 

(c)  The  defendant  may  show  a  liability  to  a  third  person,  for  the  value  of  the  property, 
in  mitigation  of  damages,  tliough  he  has  made  no  actual  payment.  Woods  v.  Banks,  14 
N.  H.  101. 


cuAr.  II.] 


ESTATES  IN  LAND.     ESTATE  IN  FEE  SIMPLE. 


61 


250  acres,  the  plaintiff  claimed  title  under  a  deed  from  the  comptroller, 
given  upon  a  sale  for  taxes.  At  the  date  of  the  deed,  there  was  a  brush 
fence  between  the  lot  and  another  lot  adjoining,  which  was  occupied 
under  a  contract  from  the  plaintiff.  In  consequence  of  a  crook  in  the 
fence,  about  two  and  a  half  rods  of  the  lot  in  cpiestion  were  enclosed 
with  the  lot  adjoining,  so  occupied,  and  the  occupant,  and  those  who 
had  preceded  him  in  the  posses.sion  of  that  lot,  had  mowed  grass  upon 
the  two  and  a  half  rods,  but  without  intention  to  occupy  over  the  line 
of  the  lot,  or  knowledge  that  they  had  done  so.  Held,  the  lot  in  ques- 
tion was  not  actually  occupied  within  the  meaning  of  the  statute  (1 
Rev.  Sts.  412,  sec.  83)  of  New  York,  so  as  to  require  notice  to  the  occu- 
pant, before  the  title  could  become  absolute  under  the  comptroller's 
deed.(l) 

38/  Though  there  is  no  written  claim  of  title,  where  the  manner  of 
occupying  a  part  of  the  land  clearly  shows  the  extent  of  the  claim, 
every  occasional  entry  will  be  an  act  of  possession,  and  not  a  bare  tres- 
pass, which  it  would  be  in  one  making  no  claim  of  title;  and  this  is 
constructive  possession. (2) 

38  ^r.  If,  in  an  action  of  ejectment,  the  defendant  claim  title  by  pos- 
session, and  it  appear  that  the  fence  of  his  adjoining  land  was  so  con- 
structed and  so  far  extended  towards  the  disputed  land,  as  to  give 
notice  to  the  public  and  to  all  concerned,  that  the  defendant  and  his 
grantors  claimed  to  exercise  exclusive  dominion  over  the  disputed  land, 
by  extending  their  fence  so  as  to  include  this  land,  whenever  it  sl^ould 
be  convenient  to  complete  the  enclosure,  and  that  it  was  left  open  for 
the  time,  for  convenience  of  use,  or  because' it  was  not  then  of  suflicient 
importance  to  be  enclosed;  and  this  have  been  continued  for  fifteen 
years ;  it  will  be  a  sufficient  possession  to  give  title. (3) 

39.  Acts  of  improvement  and  ownership  done  b}^  a  mortgagor^  will 
not  operate  as  a  disseizin  of  the  mortgagee. (4) 

40.  Mere  enjoyment  of  an  easement^  being  the  exercise  of  a  right, 
cannot  make  a  disseizin  of  the  land.(5)  Thus,  to  cover  land  with  water, 
gives  no  pedis  possessio^  showing  adverse  right.  It  is  merel}^  an  easement, 
not  inconsistent  with  title  in  another.(6)(a) 

41.  Where  one  had  driven  piles  into  the  ground,  which  was  covered 
by  a  mill-pond  belonging  to  another,  and  had  erected  and  maintained 
buildings  on  the  piles  for  sixty  years,  the  water  of  the  pond  flowing 
between  the  piles;  held,  a  disseizin  of  the  owner  of  the  mill-pond.(7) 


(1)  Smith  V.  Sanger,  4'Corast.  576. 

(2)  Buck  V.  Squier3,  23  Vt.  498. 

(3)  lb. 

(4)  Hunt  V.  Hunt,  14  Pick.  374;  Fenwick 


V.  Macey,  1  Dana,  279. 

(5)  Stetson  v.  Veazie,  2  Fairf.  408. 

(6)  Mima  v.  "Weathersbee,  2  Strobli.  184. 

(7)  Boston,  &c.  V.  BuUinch,  G  Mass.  229. 


(a)  Where  an  island,  subject  to  overflow,  and  susceptible  of  use  without  being  enclosed, 
was  used  by  the  defendant  for  pasturage,  whenever  it  was  safe  so  to  use  it,  for  20  years; 
held  a  sufiBcient  possession  to  bar  any  other  claimant,  but  not  within  the  seven  years'  limi- 
tation law  of  Kentucky,  for  want  of  actual  settlement.     Wells  v.  Hynes,  9  B.  Men.  338. 

Where  the  legislature  provided  that  improvements,  whether  wharfs,  hou.ses,  or  buildings, 
made  out  of  the  water,  should  be  the  right,  title  and  inheritance  of  the  improvers  forever, 
and  A  held  land  bordering  on  the  water,  under  a  patent,  and  B  erected  and  maintained  a 
fence,  for  thirty  years  and  upwards,  ou  a  part  of  the  low  grounds  adjacent  to  A's  land, 
which  was  covered  by  the  flow  of  the  tide,  and  claimed  below  it ;  held,  A  had  no  possession, 
property  or  right  in  tlie  land  covered  by  the  tide,  until  reclaimed  from  the  water;  that  B 
gained  no  possession  by  his  said  acts ;  and  that  those  acts  gave  A  no  right  of  action  against 
B,  either  in  ejectment  or  trespass.     Casey  v.  Inloes,  1  Gill.  430. 


52 


ESTATES  IN  LAND.     ESTATE  IN  FEE  SIMPLE 


[CHAP.  II. 


41  a.  A  disseizin  of  fiats  may  be  made  by  an  appropriate  occupation 
thereof  for  that  purpose,  as  by  entering  upon,  and  fiUing  them  up,  or 
by  building  a  wharf,  and  using  the  flats  adjoining  for  laying  vessels  at 
the  same.  But  passing  with  vessels  over  flats,  and  anchoring  on  them, 
using  them  for  the  purpose  of  access  to  and  egress  fj-om  a  wharf  with 
vessels,  being  a  usage  of  common  right,  provided  for  in  the  Massachusetts 
ordinance  of  1641,  is  not  inconsistent  with  the  right  of  the  proprietor  to 
a  fee  in  such  flats,  and  constitutes  neither  a  disseizin  nor  a  trespass.(l) 

41  h.  The  tenant  in  a  real  action,  who  had  acquired  title  to  a  wharf  by 
disseizin,  had  also  exclusively  occupied  the  flats  at  the  end  of  the  same, 
to  the  distance  of  80  feet,  for  the  purpose  of  laying  vessels,  and  had 
used  the  flats  in  front  of  the  wharf  beyond  the  distance  of  80  feet,  for 
the  purpose  of  access  to  and  egress  from  the  wharf  with  vessels.  Held, 
the  exclusive  occupation  to  the  distance  of  80  feet  was  a  disseizin  of  so 
much,  but  the  occupation  beyond  that  distance  was  not  a  disseizin  of 
the  residue,  and  the  former  did  not  extend  to  and  create  a  disseizin  of 
the  latter.(2) 

41  c.  If  a  person  can  acquire  title  to  flats  covered  by  water  at  high 
tide  only,  by  cutting  "  thatched  grass"  thereon  for  forty  years,  his 
title  will  extend  only  to  the  time  of  his  actual  occupation  by  cutting 
such  grass.(3) 

41  d.  But  if  the  title  of  a  person  to  such  "thatch  islands,"  was  ex- 
tended to  low  water  mark  by  force  of  the  ordinance  of  1641,  c.  63,  it 
would  not  extend  over  flats  adjoining  the  islands,  except  those  lying 
between  them  and  low  water  mark. (4) 

42.  Where  a  dock,  of  which  the  owner  of  an  adjoining  wharf  claimed 
to  be  seized,  was  filled  up  by  the  town,  and  in  this  condition  used  with 
the  wharf  as  a  highway,  and  afterwards  the  whole  was  paved  b}'  the 
town,  though  it  did  not  appear  that  the  way  had  been  legally  laid  out; 
held,  the  acts  of  the  town  amounted  to  a  disseizin  of  the  dock,  but,  in 
respect  to  the  wharf,  were  so  equivocal,  as  to  present  a  question  for  the 
jury  as  to  the  intention  to  disseize.(5) 

42  a.  Where  a  person  entered  upon  land  under  a  claim  of  title,  and 
removed  iron  ore  therefrom,  from  time  to  time,  to  supply  an  adjoining 
factor}',  but  without  any  actual  enclosure  or  residence  thereupon ;  held, 
an  actual  possession  by  disseizin,  for  which  the  owner  might  sue  in 
trespass;  but  that  he  could  not  racover  for  injuries  to  the  freehold, 
subsequent  to  such  entry  and  disseizin,  till  he  had  recovered  pos- 
session.(6) 

43.  A  stranger  without  title  took  possession  of  land  mortgaged,  and 
built  on  parts  of  it  a  blacksmith's  shop  and  carpenter's  shop ;  and  the 
occupants  of  the  former  occasionally  used  parts  of  the  lot  adjacent  to 
their  shop  to  spread  their  boards  on,  and  the  occupants  of  the  latter 
used  other  parts  of  the  lot  to  run  carriages  on,  and  put  tires  on  wheels. 
Held,  the  mortgagee  was  hereby  disseized  only  of  the  part  of  the  land 
covered  by  the  shops.(7) 

44.  It  is  intimated,  that  the  law  will  require  peculiarly  strict  proof 


(1)  Wheeler?;.  Stone,  1  Cush.  313;  Drake 
Curtis,  lb.  395. 

(2)  D). 

(3)  Thornton  v.  Poss,  26  Maine,  402. 

(4)  lb. 


(5)  Tyler  v.  Hammond,  11  Pick.  193. 
(G)  West  V.  Lanier,  9  Humph.  762. 
(7)  Poignard  v.  Smith,   8   Pick.    272. 
Wicklille  v.  Ensor,  9  B.  Mon.  253. 


See 


CHAP.  II.]    ESTATES  IN  LAND.  ESTATE  IN  FEE  SIMPLE. 


53 


to  constitute  a  po.ssession  advcnsc,  in  a  newly  settled  country.  The 
property  acquired  by  settlers  on  public  lands,  more  especially  that  class 
termed  squatters,  is  novel  in  its  character,  peculiar  to  the  Western  States, 
not  like  that  of  a  baillee  or  trustee,  or  that  of  mere'wanton  trespassers. 
With  the  revolution,  it  became  an  object  to  rais^  a  revenue  from  the 
sale  of  vacant  lands,  without  requiring  any  actual  settlement  or  culti- 
vation. Uenee,  it  is  a  settled  rule,  that  the  possession  of  such  lands 
follows  the  title,  and  so  continues  until  an  adverse  possession  is  clearly 
made  out.(l)(a) 

45.  There  are  some  cases,  where,  for  the  time,  an  estate  is  so  situated 
that  no  person  is  seized  of  it  in  fee.  Thus,  if  land  be  conveyed  to  A 
for  life,  remainder  to  the  right  heirs  of  B,  who  is  living  ;  during  B's 
life  no  one  is  seized  in  fee.  The  fee  is  said  to  be  in  abeyance ;  a  word 
derived  from  the  French  layer,  to  expect,  and  meaning  in  remembrance, 
intendment  and  consideration  of  the  law.(2) 

46.  An  abeyance  of  the  fee,  however,  is  against  the  policy  of  the 
law,  on  account  of  several  inconveniences  which  attend  it.  Thus,  the 
occupant  of  the  land  may  commit  waste,  and  there  is  no  one  who  can 
maintain  an  action  of  waste  again.st  him.  So  the  title,  if  attacked,  can- 
not be  completely  defended,  unless  the  tenant  can  pray  in  aid  a  present 
owner  in  fee.  Nor  will  a  writ  of  right  lie  against  a  mere  tenant  for 
life.(3)  Abeyance  is  unpropitious  to  proper  care  and  vigilance  in  the 
preservation  of  property,  and  to  productive  labor  and  improve- 
ment.(4)(i) 

47.  Sometimes,  also,  even  the  freehold  is  in  abeyance,  not  even  an 
estate  for  life  being  vested  in  any  person.  But  the  law  rarely  rdlows 
this ;  partly  for  the  feudal  reason,  not  in'  force  in  the  United  States, 
that  the  lord  could  call  only  upon  the  tenant  of  the  freehold  for  services, 
and  partly  that  a  true  owner  disseized,  can  maintain  an  action  only 
against  such  tenant. (5) 

48.  For  these  reasons,  by  the  common  law,  a  freehold  estate  cannot 
be  conveyed  to  commence  infuturo.     But  in  the  States  of  Connecticut, 


(1)  4  Verm.  155;  Fite  v.  Doe,  1  Ind.  R. 
129  ;  Jones  v.  Snelson,  3  Misso.  393  ;  Jack- 
son V.  Sellick,  8  John.  270;  Bell  v.  Fry,  5 
Dana,  344. 

(2)  Co.  Lit.  342  ;  Bray  Peerage,  &c.,  5  Bing. 
N.  754;   8  Scott,  108. 


(3)  1  Cruise,  45. 

(4)  Bucksport  v.  Spofford,  3  Fairf.  492. 

(5)  Witiiers  v.  Is^am,  Dyer,  71a:  Slieffield 
V.  Hatcliffe,  Hob.  338 ;  1  Cruise,  43  ;  Tcrrett 
V.  Taylor,  9  Crancli,  47  ;  Jewett  v.  Burroughs, 
15  Mass,  464.     See  N.  H.  llev.  St.  282-3. 


(a)  With  regard  to  lands  belonging  to  the  government,  it  is  held,  that  though  one  who  en- 
ters upon  such  lands  is  a  mere  intruder,  yet  he  may  maintain  a  writ  of  right  against  any 
third  person.  Thomas  v.  Hatch,  3  Sunin.  170.  Upon  a  similar  principle,  if  the  State  con- 
vey land  occupied  by  a  third  person,  ho  will  have  a  claim  for  betterments,  as  in  other  cases, 
against  the  grantee.  Kinsman  v.  Greene,  4  Shepl.  60.  In  New  Hampshire,  unauthorized 
possession  of  public  lands  is  subjected  to  a  penalty,  and  confers  no  title.  N.  H.  Rev.  St. 
417.  So,  ill  Alabama,  possession  will  not  give  a  title  against  the  government.  Wright  v. 
Swan,  6  Por.  84.  In  Wisconsin,  a  settler  on  the  public  land  may  maintain  an  action  there- 
for. His  possession  extends  to  the  bounds  of  his  claim,  without  enclosure,  not  exceeding 
160  acres.  The  land  may  be  in  two  parcels.  The  claim  must  be  marked  out,  so  as  to  show 
its  extent,  and  the  land  occupied  or  improved  to  the  value  of  $50.  A  neglect  to  occupy  or 
cultivate  for  6  months,  is  an  abandonment.  Wis.  Rev.  St.  610.  A  purchaser  of  lands, 
knowing  the  claims  and  possession  of  the  state,  and  taking  subject  to  its  rights,  has  no  ad- 
verse possession.     Kingman  v.  Sparrow,  12  Barb.  201. 

(b)  The  feudal  reasons  for  this  rule  were,  that  the  superior  lord  might  know  on  whom  to 
call  for  military  services,  and  any  adverse  claimant  of  the  lauds,  against  whom  to  bring  his 
praecipe  for  their  recovery.     Seo  Dyer,  71a;  Hob.  338. 


54  ESTATES  IN  LAND.     ESTATE  IN  FEE  SIMPLE.  [CHAP.  II. 

Virginia,  Wisconsin,  Indiana,  New  York  and  Ohio,  this  rule  has  been 
abolished  or  greatly  qualified. (1)  So,  in  New  Hampshire,  a  freehold  in 
futuro  may  be  conveyed  either  by  deed  of  bargain  and  sale,  or  covenant 
to  stand  seized. (2)  Under  the  statutes  of  Vermont,  in  reference  to  con- 
veyancing, a  freehold  estate  may  be  created,  in  terms,  to  take  effect  in 
future.(3) 

49.  By  act  of  law,  however,  the  freehold  may  be  in  abeyance.  One 
of  the  ^ew  instances  of  this  is,  where  &  parson  or  minister,  seized  of  par- 
sonage lands  ill  jure  'parocliice,  dies ;  in  which  case  the  freehold  is  in 
abeyance  till  his  successor  is  appointed. (4)(rt) 

60.  Rectors  and  parsons  are  deemed  so  far  to  have  a  fee-simple  that 
they  transmit  the  estate  to  their  successors ;  while,  for  the  benefit  of 
those  successors,  they  are  restricted  in  their  use  of  the  land  within  the 
powers  of  tenants  for  life.  In  England,  however,  a  parson,  with  the 
assent  of  the  patron  and  ordinary,  may  grant  a  perpetual  rent-charge 
from  the  land.(o)  In  South  Carolina,  a  statute  provides,  that  a  parson 
may  bequeath  the  crop  standing  on  his  glebe  land.(6)(6) 

51.  In  Massachusetts,  as  early  as  1654,  provision  was  made  by  a 
colonial  statute  for  parsonages.  By  a  provincial  statute  of  28  Greo.  2, 
c.  9,  a  congregational  minister  might  convey  with  the  assent  of  the 
parish,  and  an  episcopal  minister  with  the  assent  of  the  vestry.  The 
same  statute  made  protestant  ministers  sole  corporations.(7) 

52.  AVhile  the  fee  is  in  abeyance,  the  parish  is  entitled  to  the 
profits.  (8) 

53.  A  conveyance  in  fee  by  the  parish  to  the  minister  is  void. 

54.  A  parish,  for  certain  considerations,  released  and  sold  to  the  minis- 
ter parsonage  property.  The  minister,  by  his  will,  authorized  his  exe- 
cutors to  sell  the  lands,  who  accordingly  sold  them.  Held,  the  above- 
named  release  did  not  in  any  way  enlarge  the  minister's  estate,  and 
that  it  could  not  be  coupled  with  the  will  and  executors'  sale,  so  as  to 
cousj:itute  a  joint  conveyance  by  minister  and  parish. (9) 

55.  So,  in  Maine,  where  a  town  with  the  assent  of  the  minister  voted 
that  he  should  have  the  use  of  one-half  of  the  parsonage  lands ;  it  was 
held  that  the  fee  of  the  whole  lands  still  remained  in  him.(10)(c) 


(1)  4  Dane,  646;  1  N.  Y.  Rev.  St.  724; 
Walk.  Intro.  278,  286;  Vir.  Code,  500;  Wise. 
Rev.  St.  ch.  56,  sec.  24;  lud.  Rev.  Sts.  232. 

(2)  Bell  V.  Scannon,  15  N.  H.  381 


(6)  Antli.  Shep.  564. 

(7)  Jurist,  July,  1836,  p.  268. 

(8)  Westoa  v.  Hunt,  2  Mass.  500  ;  Brown 
V.  Porter,  10,  97. 


(3)  Gorham  v.  Daniels,  23  Vt.  600.  (9)  Austin  v.  Thomas.  14  Mass.  333. 

(4)  Lit.  sec.  647.  i      (lO)  Bueksport  v.  Spofford,  3  Fairf.  487. 

(5)  Co.  Lit.  341  a  &  b ;  Lit.  648.  |  /  r  r  , 


(a)  So,  where  land  is  granted  to  pious  uses  before  there  is  a  grantee  in  being  competent 
to  take  It;  the  fee  m  the  meantime  is  in  abeyance.  Pawlet  v.  Clark,  9  Cranch.  293.  So 
■where  a  charter  is  granted,  and  the  corporation  is  to  be  brought  into  being  by  future  acts 
of  the  corporators ;  m  the  meantime,  the  franchises  or  property  granted  by  the  charter  re- 
main in  abeyance.     Dartmouth,  &c.  v.  Woodward,  4  Wheat.  691. 

{h)  One  liolding  the  office  of  minister  for  life,  or  for  years,  is  seized  of  a  conditional  free- 
hold, and  liable  for  waste.  CargiU  v.  Sewall,  1  Appl.  288.  So,  he  may  maintain  trespass, 
and  the  suit  may  proceed  after  he  ceases  to  hold  his  office.     lb. 

(c)  A  lease  for  999  years,  of  parsonage  land,  by  a  parish  having  no  minister,  vests  in  the 
lessees  all  rights  of  entry  and  possession  belonging  to  the  lessor,  whether  valid  against  a 
successor  m  the  ministry  or  not.  Cheever  v.  Pearson,  16  Pick.  266.  See  Second,  &c.  v. 
Carpenter,  23  Pick.  131.  ' 


CHAP.  II.]  ESTATES  IN  LAND.     ESTATE  IN  FEE  SIMPLE.  55 

56.  To  every  estate  in  lands  the  law  has  annexed  certain  peculiar 
incidents,  rights  and  privileges,  which  appertain  to  it  as  of  course,  with- 
out being  expressly  enumerated.  In  some  instances,  thq^se  incidents 
arc  absolutely  inseparable  from  the  estate,  while  in  otJ-ners  they  may  be 
restricted  or  destroyed  b}^  express  provisions  and  conditions. 

56  a.  A  fee-simple  being  the  absolute  ownership,  the  law  regards  its 
incidents  as  inseparable  from  the  estate,  and  any  restriction  upon  them 
as  repugnant,  and  therefore  void. (a)  Such  are  the  rights  of  descent,  of 
curtesy  and  dower,  belonging  not  to  the  owner  himself,  but  to  those 
claiming  under  him.  These  will  be  considered  hereafter.  Such  also 
is  the  right, 'in  the  owner  himself,  of  unlimited  alienation^  or  of  com- 
mitting waste.{\) 

57.  A  condition,  in  a  conveyance  or  devise  in  foe-simple,  against 
alienation  generally,  is  void.  lience  the  usual  clause  in  conveyances 
of  the  fee,  "assigns  forever,"  has  no  legal  effect.(2)  If  used  with  the 
word  heirs,  it  is  superfluous;  if  without,  it  confers  no  new  right.(i) 

58.  So,  any  condition  or  local  custom  against  leasing  the  land  is  void. 
But  a  condition  against  alienation  to  any  particular  person,  or  an 
unlawful  alienation,  as  in  inortmain ,{c)  is  valid.  So,  if  A  convey  to  B 
one  lot  of  land,  on  condition  that  B  shall  not  alien  another  lot,  of  which 

(1)  Shep.  Touch.  131  ;  1  Cruise,  4G;    Lit.  I  Craig  v.  Watt,  1  Watts,  498. 
360.     See  Germond  v.  Jones,  2   Hill,   569 ;  |      (2)  2  Prest.  Est.  3. 

(a)  With  regard  to  tho  incidents  of  estates,  there  seems  to  be  little  uniformity  or  consist- 
ency in  the  law.  While  in  some  instances  they  are  made  subject  to  express  liraitfitions  and 
agreements,  (according  to  the  principle  stated  by  Bractonj  (lib.  ii.  c.  6),  "  modus  et  conventio 
vincunt  legem ;")  in  others,  tliey  are  held  to  over-ride  all  stipulations  against  them.  Good 
reasons  may  be  given,  why  tho  incidents  of  an  estate  in  fee-simple  should  be  held  insepara- 
ble from  it.  But  the  same  principle  is  adopted  in  regard  to  estates  tail.  Thus,  a  condition 
against  the  right  to  curtesy  or  dower  in  such  estates,  is  void.  So,  an  estate  at  ivUl  must  be  at 
tho  will  of  both  parties,  thougli  expressed  otherwise.  So,  if  land  be  given  to  A  and  his  heirs 
for  twenty-one  years,  it  goes  to  his  executors.  But,  on  the  other  hand,  though  the  right  of 
assigning  or  underletting  is  incident  to  an  estate  for  years,  it  may  be  controlled  by  an  ox- 
press  condition  or  covenant.  So,  although  a  conveyance  to  husband  and  wife  ordinarily 
makes  them  Joint  tenants,  yet  a  grant  to  them  to  hold  as  tenants  in  common  makes  them  such. 
Co.  Lit.  187  b.  So,  a  mortgage,  though  personal  estate,  will  pass  as  real  estate  where  such 
appears  to  be  tho  intent  of  a  testator. 

(b)  A  provision  in  a  devise,  that  tho  land  shall  not  be  "  subject  or  liable  to  conveyance  or 
attachment,"  is  void.     Blackstono,  &c.  v.  Davis,  21  Pick.  42. 

Devise  of  real  estate  to  the  testator's  wife  for  life,  "  the  remainder  of  his  estate,  whether 
real  or  personal,  in  possession  or  reversion,  to  his  five  children,  to  be  equally  divided  to 
and  among  them  or  their  heirs  respectively,  always  intending,  &c.,  that  none  of  his  children 
shall  dispose  of  their  part  of  the  real  estate  in  reversion,  before  it  is  legally  assigned  to 
them."  Held,  the  children  took  a  vested  remainder  in  the  real  estate  devised  to  the  wife 
for  life,  and  the  restriction  upon  their  right  of  alienation  was  void.  Hall  v.  Tufts,  IS  Pick. 
455.  In  Kentucky,  it  is  held,  that  although  a  condition  against  alienation,  in  a  deed,  is 
void,  yet  a  bond  against  it,  accompanying  the  deed,  is  good,  because  the  latter  docs  not  im- 
pair the  title  in  the  hands  of  third  persons,  but  merely  gives  a  claim  for  damages  against 
the  obligor.  Turner  v.  Johnson,  7  Dana,  438.  Bequest  of  money  and  leaseholds  to  a  feme 
sole,  "  for  her  own  absolute  use,  without  liberty  to  sell  or  assign  for  her  life."  Held,  she 
took  an  absolute  title,  but  without  the  power  of  disposal.     Baker,  v.  Newton,  2  Beav.  112. 

Devise  to  nfeme  covert  in  fee  for  her  separate  use,  with  a  prohibition  of  any  transfer  or 
charge  during  her  life  or  marriage.  "She  shall  not  sell,  charge,  &c.,"  "shall  hold  for  her 
own  sole  and  separate  use,  benefit  and  disposal,  have  the  sole  management,  independent  of 
her  husband  and  his  debts."  Held,  this  restraint  was  efleclual,  and  an  equitable  mortgage, 
made  with  notice  thereof,  was  void  against  her.  Baggett  v.  Meaux,  Coll.  Cha.  138;  Church- 
ill t;.  Marks,  ib.  441. 

(c)  A  clause  was  anciently  in  use,  allowing  alienation  to  all  but  religious  men  and  Jews. 


56 


QUALIFIED  AND  CONDITIONAL  FEES 


[CHAP.  Ill 


B  was  previously  seized ;  tLis  condition  is  valid,  xlnd  it  has  been  said 
that  a  condition  against  alienation,  generally,  may  be  annexed  to  the 
creation  of  a  new  rent-charge.  But  Lord  Coke  says  "  this  is  against 
the  height  and  puritj^  of  a  fee-simple."(l) 


CHAPTER   III. 

QUALIFIED  AND  CONDITIONAL  FEES  AND  ESTATES  TAIL. 


1.  Fees,  qualified,  conditional,  d:c. 
3.  Estates  Tail — origin. 

5.  Description. 

6.  "Wljat  may  be  entailed. 

12.  Rights  and  duties  of  tenant  in  tail. 


18.  Conveyance  by  tenant  in  tail. 

25.  Contracts  of  tenant  in  tail. 

27.  Entailment — bow  barred. 

28.  Estates  tail  in  the  United  States. 


1.  Having  treated  of  estates  in  fee-simple,  we  proceed  to  consider 
other  estates  of  inheritance  of  an  inferior  kind.  These  have  been  by 
some  writers  included  in  one  class,  by  others  divided  into  fees  qualified 
and  conditional,  and  by  others  into  fees  qualified,  fees  conditional,  and  fees 
tail ;  but  such  minute  distinctions  of  classification  are  of  little  conse- 
quence.(2) 

2.  Where  an  estate  limited  to  a  person  and  his  heirs  has  a  qualifica- 
tion annexed  to  it,  by  which  it  must  determine  whenever  that  qualifi- 
cation is  at  an  end ;  it  is  a  qualified  or  base  fee.  In  other  words^  a 
qualified,  base  or  determinable  fee,  is  an  interest  which  may  continue 
forever,  but  is  liable  to  be  ended  by  some  act  or  event,  circumscribing 
its  continuance  or  extent.  Thus,  if  land  is  granted  to  Alexander,  king 
of  Scotland,  and  his  heirs,  kings  of  Scotland;  or  to  A  and  his  heirs, 
tenants  of  the  manor  of  Dale;  if  the  heirs  of  Alexander,  in  the  one  case, 
are  not  kings  of  Scotland,  or,  in  the  other,  whenever  the  heirs  of  A 
cease  to  be  tenants  of  this  manor,  their  estate  terminates.(3)  So,  a 
devise  to  trustees  and  their  heirs,  upon  trust  to  pay  the  testator's  debts 
and  legacies,  and  after  payment  thereof  to  his  sister  for  life,  &c. ;  gives 
a  base  fee  to  the  trustees,  determinable  on  payment  of  the  debts  and 
legacies.  (4) 

3.  To  this  class  of  fees  or  inheritances,  belong  conditional  fees  and 
estates  tail.  A  conditional  fee  is  a  limitation  of  an  estate  to  some  par- 
ticular heirs  of  a  man,  exclusive  of  others — as,  for  instance,  to  the  heirs 
of  Ids  body,  or  the  male  heirs  of  his  body.  This  kind  of  limitation,  origi- 
nally unknown  to  the  common  law,  gradually  at  an  early  period  came 


(1)  Co.  Lit.  223  a,  b;  Dyer,  357  b;  Lit. 
361;  M'Williams  v.  Nisby,  2  S.  &  R.  373. 
See  Hawley  v.  Northampton,  8  Mass.  37 ; 
Turner  v.  Johnson,  7  Dana,  438. 

(2)  2  Bl.  Com.  104-9;  Co.  Lit.  1  b;  Plow. 
241;    1  Prest.  on  Est.  420;  4  Kent,  5;  Ed. 


Seymour's  case,  10  Rep.  97  b. ;  Plowd.  557. 

(3)  1  Cruise,  51;  4  Kent,  9.  See  Keslin 
V.  Campbell,  15  Penns.  500;  Woodroffe  v. 
Daniel,  15  L.  J.  N.  S.  356. 

(4)  Willington  v.  Willington,  1  Bl.  R.  645. 
See  Doe  v.  Woodroffe,  10  Mees.  &  W.  608. 


CHAP.  III.]  AND  ESTATES  TAIL.  57 

into  extensive  usc.(rt)  It  was  construed  by  the  judges  to  difl\3r  from  a 
fee-simple  oily  in  the  following  points ;  that  its  duration  beyond  the 
life  of  the  donee  depended  upon  his  having  issue,  and,  when  this  con- 
dition was  fidlillcd,  it  became  liable  to  alienation,  forfw^re  and  incum- 
brance, like  an  absolute  estate.  The  owner  might  also  alienate  the 
estate  before  the  birth  of  issue,  and,  if  issue  were  afterwards  born, 
neither  the  donor,  nor  the  issue,  when  born,  could  reclaim  it.  When 
the  donee  died  without  having  had  issue,  or  when  liis  issue  died  without 
issue,  and  not  having  alienated,  the  donor  might  re-enter  as  for  breach 
of  condition. 

4.  From  this  form  of'limitation  originated  estates  tail,  so  called  after 
an  ancient  German  feud — ^^feudum  taUiatum.^\h)  These  were  estab- 
lished by  the  statute  Westminster  2,  13  Edw.  I.,  entitled  the  statute 
"c^e  donis  condiiionalihiis.^''  This  act,  in  general,  provides  that  the  will 
of  a  donor,  manifestly  expressed  in  the  charter  of  his  gift,  shall  be 
observed,  and  forbids  persons  to  whom  the  above-named  estates  are 
convej-ed,  from  barring  their  issue  and  the  donor  by  alienation.  Its 
passage  was  procured  by  the  nobility,  with  the  object  of  perpetuating 
estates  in  their  families;  and,  by  virtue  of  it,  if  the  donee  die,  leaving 
issue,  they  shall  take  the  estate  ;  but,  if  he  die  leaving  no  issue,  or  upon 
any  future  failure  of  lineal  heirs  of  the  class  to  which  the  estate  is  limited, 
it  shall  return  back  to  the  donor  or  his  heirs.  The  eft'eet  of  this  statute 
is,  that  whereas  the  estate  was  before  a  conditional  fee,  and  the  donor's 
right  of  re-entry  founded  on  breach  or  failure  of  condition ;  an  estate 
tail  is  viewed  as  carved  out  of  the  inheritance,  like  any  other  particular 
estate,  and,  upon  its  expiring  by  limitation,  the  donor  or  his  heirs  re- 
enter like  any  other  reversioners.(l) 

5.  An  estate  tail  is  defined(2)  as  an  estate  of  inheritance,  created  by 
the  statute  "  de  donis  condiiionalihus,''^  and  descendible  to  some  particular 
heirs  only  of  the  person  to  whom  it  is  granted.(c)  It  is  of  two  kinds 
— mnei'al  and  special ;  the  former  descendible  to  the  heirs  of  the  body 
generally;  the  latter  to  some  particular  heirs  of  the  body.     In   the 

(I)  See  1  Burr.  115;  2  Inst.  335;  Plow.  I      (2)  1  Cruise,  56;  2  Bl.  Com. ;  4  Kent. 
248. 


(a)  Bracton  (lib.  2.  ch.  6)  thus  describes  it: — "Heirs  may  be  restrained  by  the  mode  of 
the  gift,  whereby  all  the  lieirs  generally  are  not  called  to  the  succession;  for  the  mode 
gives  law  to  the  gift,  and  tlie  mode  is  to  be  upheld  against  common  right  and  against  the 
law,  because  mode  and  agreement  control  law.  As  if  it  be  said,  '  I  give  to  such  an  one  so 
much  land,  with  the  appurtenances,  in  N.,  to  have  and  to  hold  to  hira  and  his  heirs,  whom 
he  shall  have  begotten  of  his  body  and  the  wife  married  to  hira.'  Or  thus,  '  I  give  to  such 
an  one,  and  such  a  person  his  wife,  or  with  such  a  person,  my  daughter,  Ac ,  to  have  and  to 
liold  to  him  and  his  heirs,  proceeding  from  the  body  of  such  wife  or  daughter,  either 
born  or  to  bo  born ;  in  which  case,  since  certain  heirs  are  expressed  in  the  gift,  it  will  be 
seen  that  the  descent  is  only  to  these  very  common  heirs,  through  the  mode  specified  ia 
the  gift;  all  his  other  heirs  being  wholly  excluded  from  the  succession,  because  the  donor 
Las  willed  it." 

(6)  An  ancient  author  (Du  Cange)  thus  describes  it.  "  A  fee  tail  ( feudum  taUiatum)  is 
detined,  in  forensic  language,  as  an  inheritance  limited  to  a  particular  certainty,  or  a  feud 
granted  on  certain  conditions;  a?,  for  example,  to  a  person  and  his  children  to  be  born  in 
lawful  marriage.  Hence,  if  he  to  whom  the  feud  was  given  die  without  children,  the  feud 
returns  to  the  donor;  for  to  entail  is  to  reduce  to  a  kind  of  certainty,  or  to  limit  an  inherit- 
ance to  something  certain." 
/  (c)  Inasmuch  as  these  heirs  must  be  heirs  of  the  body  or  lineal  descendants,  perhaps  the 
definition  in  the  text  might  be  rendered  more  strictly  accurate,  by  specifying  this  necessary 
element  in  the  estate. 


58 


QUALIFIED  AND  CONDITIOXAL  FEES 


[CHAP.  Ill 


former  case,  the  issue  of  tlie  donor,  male  or  female,  by  any  marriage 
may  inherit.  A  special  entailment  may  be  made  either.to  the  issue 
begotten  upon  a  certain  wife;  or  to  issue  male  or  issue  female ;(a)  and 
no  children  can  inherit  who  do  not  fall  within  these  respective  descrip- 
tions.(/>)  Thus,  iu  case  of  an  estate  in  tail  male,  if  the  donee  has  a 
daughter,  she  cannot  inherit  ;(1)  nor  can  the  son  of  such  daughter 
inherit,  being  obliged  to  claim  through  her.  So,  if  lands  be  given  to  a 
man  and  the  heirs  male  of  his  body,  remainder  to  him  and  the  heirs 
female  of  his  body,  and  the  donee  has  issue  a  son,  who  has  issue  a 
daughter,  who  has  issue  a  son ;  this  son  cannot  inherit  either  of  the 
estates;  because  he  cannot  deduce  his  descent  wholly  either  through 
the  male  or  female  line.  So,  under  a  devise  to  "the  eldest  male  lineal 
descendant,"  a  person  cannot  take,  who  claims  in  part  through  a  fe- 
male. (2) 

6.  Not  only  lands  may  be  entailed,  but  every  species  of  incorporeal 
property  of  a  real  nature — such  as  dignities,  in  England,  estovers^  com- 
mons, or  other  profits  concerning,  or  annexed  to,  or  granted  out  of 
land.     So,  charters  or  muniments  of  title. (3)(c) 

7.  So,  in  equity,  money  directed  or  agreed  to  be  laid  out  in  the  pur- 
chase of  land  may  be  entailed. (4) 

8.  But  inheritances  merely  personal,  not  real  rights  or  interests,  or 
partaking  of  the  realty — as,  for  instance,  an  annuity  charging  only  the 
person  and  not  the  lands  of  the  grantor,-^are  not  entailable,  but  the 
subjects  of  a  conditional  fee  at  common  law,  and  absolutely  alienable 
on  the  birth  of  issue.(5)(c/) 

9.  Thus,  an  annuity  in  fee-simple,  granted  by  the  crown  out  of  the 
four  and  a  half  per  cent,  duties,  payable  for  imports  and  exports  at 
Barbadoes.(6) 

10.  So,  an  annuity  granted  by  Parliament  out  of  the  revenues  of  the 
post-office,  redeemable  upon  payment  of  a  sum  of  money,  to  be  laid 
out  in  land,  is  not  entailable,  notwithstanding  the  latter  provision ;  for 
Chancery  will  not  treat  the  annuity  as  land,  merely  upon  a  possibility 
of  such  future  redemption.(7) 

11.  The  instance  of  an  annuity  seems  to  be  the  only  one  in  which 
even  a  conditional  fee  in  a  personal  chattel  can  be  created.  In  equity 
estates  7:>0Mr  autre  vie,  terms  and  chattels,  though  they  may  be  limited 
in  strict  settlement,  cannot  be  entailed.  Terms  and  chattels  pass  abso- 
lutely by  a  limitation  which  would  operate  as  an  entailment  of  real 


(1)  1  Roll.  Abrid.  841,  contra.  See  Co.  Lit. 
19  a.  n.  4. 

(2)  Co.  Lit.  25  b;  Oddie  v.  Woodford,  3 
My.  &  C.  584.  By  "male  descendants," in  a 
will,  are  meant  those  who  claim  through 
males  alone.     Bernal  v.  Bernal,  3  lb.  559. 

(3)  1  Cruise,  58-9;    Nevil's  Case,  T   Rep. 


33  ;  Co.  Lit.  20  a. 

(4)  Ibid. 

(5)  lb. ;  Staflbrd  v.  Buckley,   2  Ves.  178 : 
Co.  Litt.  20  a. 

(6)  Stafford  v.  Buckley,  2  Yes.  170. 

(7)  Holderaesse  v.  Carmarthen,   1  Bro.  R 
37G. 


(a)  It  has  been  questioned  whether  the  law  would  sustain  the  latter  form  of  limitation; 
but,  it  seems,  without  reason.     Co.  Lit.  25  a.  n.  1. 

(6)  Before  the  statute  de  donis,  (upon  what  principle  it  is  difficult  to  understand,)  although 
the  limitation  was  made  to  issue  had  by  a  certain  wife,  yet  after  the  birih  of  such  issue,  the 
land  became  descendible  to  any  issue  of  the  donee,  whatever.  Co.  Lit.  19  a.  n.  2.  See 
Doe  V.  Woodroffe,  10  Mees.  &  W.  608. 

(c)  By  the  law  of  Scotland,  a  jewel  or  picture.     2  Bell,  2. 

(d)  King  Chas.  II.  granted  a  perpetual  annuity  to  A  and  his  heirs,  payable  from  coal 
duties.    Held,  it  passed  to  heirs,  though  personal  property.     Radburn  v.  Jervis,  3  Beav.  450. 


CHAP.  III.] 


AND  ESTATES  TAIL. 


59 


estate. (I)     In  New  York,  the  same  restriction  is  imposed  upon  perpe- 
tuities in  eliattels  real,  as  in  freeliold  estaterf.(2) 

12.  Tenant  in  tail,  being  owner  of  the  inheritance,  may  commit  vxisle. 
But  the  power  must  be  exercised  during  his  life.  Ilen^e,  rf  he  sell 
trees  growing  on  the  land,  the  vendee  must  cut  thcnl  during  the  life 
of  the  tenant  in  tail ;  otherwise  they  descend  with  the  land  to  his 
heir.(8) 

13.  The  grantee  of  a  tenant  in  tail,  and  the  grantee  of  such  grantee, 
may  commit  waste.(4:) 

14.  Chancery  will  not  interfere  to  restrain  a  tenant  in  tail  from  com- 
mitting waste,  although  he  is  an  infimt  in  feeble  health  and  not  likely 
to  live  to  full  age.(5) 

15.  The  power  of  waste  is  so  far  an  inseparable  incident  to  an  estate 
tail,  that  a  bond  against  it  is  repugnant  and  void,  like  a  recognizance 
not  to  suffer  a  common  recovery ;  and  Chancery  will  order  it  to  be 
given  up  and  cancelled. (6) 

16.  Tenant  in  tail  is  entitled  to  all  deeds  and  muniments  belonging 
to  the  lands ;  and  Chancery  will  compel  a  delivery  of  them  to  him.(7) 

17.  He  is  not  bound  to  pay  off  incumbrances.  But,  if  he  does,  he 
will  be  presumed  to  have  done  it  in  exoneration  of  the  estate  in  fee- 
simple,  because  he  has  the  power  of  making  it  his  own.  But  such 
tenant,  restrained  as  to  alienation,  though  having  powers  of  leasing  and 
jointuring,  stands  in  this  respect  like  a  tenant  for  life.(8) 

18.  The  statute  de  donis  restrains  the  tenant  in  tail  from  alienating 
his  estate  for  a  longer  term  than  his  own  life.  Where  he  grants  away 
his  whole  interest,  according  to  some  authorities,  the  grantee's  estate  is 
for  the  life  of  the  tenant  in  tail,  the  reversion  being  in  abeyance; 
while,  according  to  others,  it  is  a  base  fee,  descendible  to  the  grantee's 
heirs  so  long  as  the  tenant  in  tail  has  heirs  of  his  body,  and  subject  to 
dower.(9) 

19.  Tlie  prohibition  against  alienation,  though  not  expressly  ex- 
tended to  the  issue,  applies  to  them  also  by  implication.  The  equal 
y/nW/Ze/ implies  ilie  like  lcav.{10) 

20.  Where  tenant  in  tail  conveys  away  his  estate,  the  interest  of  the 
grantee  does  not  terminate  ipso  facto  with  the  death  of  the  former,  but 
is  merely  defeasible  or  subject  to  be  avoided  by  the  issue ;  because  he 
has  the  inheritance  in  him,  and  the  statute  de  donis  makes  no  altera- 
tion as  to  him,  but  merely  provides  that  the  issue  shall  not  be  dis- 
inherited.(li) 


(1)  2  Chit.  Black.  89,  n.  ;  2  Story  on 
Equity,  252-3;  Dorr  v.  "Wainwriglit,  13 
Pick.  330;  Betty  v.  Moore,  1  Dana,  236; 
Harliiiis  v.  Coaltor,  2  Porter,  4G3  ;  Co.  Litt. 
20  a,  n.  5;  Adams  v.  Cruft,  14  Pick.  25; 
Kirch  V.  Ward,  2  Sim.  &  Stu.  409 ;  Ladd  v. 
Harney,  1  Fost.  N.  H.  514. 

(2)  1  N.  y.  Rev.  St.  724. 

(3)  Perk.  s.  53;  Hales  r.  Petit,  Plow.  259; 
Lif'ord'.s  Case,  11  Rep.  50  a. 

(4)  1  Cruise,  60;   3  Leon.  121. 

(5)  Glenorchy  v.  Bossville,  Cas.  Temp. 
Talbot,  16. 


(6)  Jervis  t).  Bruton,  2  Tern.  251. 

(7)  1  Cruise,  61. 

(8)  Jones  v.  Morgan,  1  Bro.  R.  206 ; 
Ware  v.  Polhill,  11  Ves  277  ;  Shrewsliury  v. 
Shrewsbury,  1  Ves.  227;  St.  Paul  r.  Dudley, 
15  Ves.  173. 

(9)  Lit.  s.  650 ;  "Walsinp;ham's  Case,  Plow. 
554-7  ;  Seymor's  Case,  10  Rep.  96  a. 

(10)  Resrina  v.  Fogossa,  Plow.  13;  Darby's 
Case,  T.  Jones,  239. 

(11)  Machell  v.  Clerk,  2  Ld.  Ray.  779; 
Whiting  V.  Whiting,  4  Conn.  179. 


60 


QUALIFIED  AND  CONDITIONAL  FEES 


[CHAP.  III. 


21.  B\it  where  someihmg  is  gj-anted  out  of  sin.  estate  tail;  as,  for  in- 
stance, a  rent ;  it  becomes  absolutely  void  at  his  death. (1) 

22.  Where  tenant  in  tail  mortgages  the  land,  Chancery  will  decree 
him  to  make  as  perfect  a  title  as  he  is  capable  of  making,  and  to  pay 
the  amount  due  in  a  certain  time,  or  be  foreclosed, (2) 

23.  Where  tenant  in  tail  covenants  to  stand  seized  to  the  use  of 
himself  for  life,  remainder  to  another  in  fee ;  the  whole  limitation  is 
void,  and  his  former  estate  continues.(3) 

24.  Bat  an  estate  created  by  him,  which  must  or  may  commence  in 
his  lifetime,  is  good.  Thus,  a  remainder  after  a  life  estate  will  be  vaUd, 
till  avoided  by  the  issue.(4) 

25.  Although  a  different  rule  prevailed  formerlj",  it  is  now  settled 
that  the  issue  in  tail  is  not  bound  by  any  contracts  of  his  ancestor  in 
relation  to  the  estate,  either  in  law  or  equity,  nor  by  a  decree  to  bar 
the  entailment.  Nor  will  equity  aid  in  carrying  into  eflfect  an  incom- 
plete alienation  against  him,  as,  for  instance,  a  fine.  But  if  he  does 
any  act  towards  performance,  equity  will  enforce  the  contract  against 
him. (5) 

26.  An  estate  tail  does  not,  like  estates  for  life  and  for  years,  merge 
in  the  fee-simple,  when  the  two  become  vested  in  the  same  person.  If 
it  did,  a  tenant  in  tail  might  at  any  time  destroy  the  entailment  by 
purchasingf  the  reversion  in  fee.  It  was  otherwise  with  conditional 
fees  before  the  statute  de  doms.{6){a) 

27.  In  England,  the  mischiefs  of  entailment  in  rendering  real  pro- 
perty unalienable  became  so  severe,  that  constant  attempts  were  made 
in  Parliament  to  procure  a  repeal  of  the  statute  "  de  doiiis"  but  for  a 
long  time  without  success.  Judicial  construction,  however,  at  length 
supplied  the  place  of  express  legislation.  The  courts  held  in  the  first 
place,  that  the  issue  in  tail,  having  assets,  were  bound  by  a  warranty 
of  the  ancestor;  and  afterwards,  that  both  the  issue  and  the  reversioner 
or  remainder-man  might  be  barred  by  a  feigned  recovery.  And  at  length 
two  statutes  of  Hen.  7  and  Hen.  8  declared  a  fine  to  be  a  bar  of  estates 
tail.  But  by  St.  3  and  4  Wm.  4,  c.  74,  fine  and  recovery  are  abolished, 
all  warranties  by  tenants  in  tail  are  made  void  against  the  issue,  and 
the  only  mode  of  barring  entailments  is  by  an  enrolled  deed.(7) 

28.  In  the  United  States,  estates  tail  have  in  a  great  measure  fellen 
into  disuse,  and  the  law  pertaining  to  them  is  therefore  comparatively 
unimportant. 

29.  The  people  of  Massachusetts,  at  a  very  early  period  of  the  coun- 
try, adopted  the  idea  of  entailment,  even  to  the  extent  of  giving  an 
estate  limited  to  one  and  the  heirs  of  his  body,  to  the  oldest  son,  in  the 

■  first  instance,  and  to  the  other  sons  only  on  failure  of  his  issue.     But 


(1)  "Walter  v.  Bould,  Bulst.  32. 

(2)  Sutton  w.  Stone,  2  Atk.  160. 

(3)  Beddingfield's  Case,  Cro.  Eliz.  895. 

(4)  Macheli    v.  Clerk,   2    Ld.   Ray.   ''782; 
Machell  v.  Clerk,  7  Mod.  27. 

(5)  Jenkins  v.  Keymes,  1  Lev.  237;  "Whar- 
ton V.  Wharton,  2   Vern.  3  ;  Frank  v.  Main- 


waring,  2  Beav.  115;    Ross  v.  Ross,  2   Cha. 
C.  171 ;  Cavendish  v.  "Worsley,  Hob.  203. 

(6)  2  Rep.  61  a;  see  "Woodroffe  v.  Daniel, 
15  L,  J.  (N.  S.)  356. 

(7)  Mildmay's  Case,  6    Rep.   40  b. ;    Rolls 
of  Pari.  142. 


(a)  But  a  life  estate  so  far  merges  in  an  estate  tail,  that  the  tenant  in  tail  cannot  main- 
tain an  action  for  the  frethold,  as  such.     Webster  v.  Gilman,  1  Story  R.  499. 


CHAP.  III.] 


AND  ESTATES  TAIL. 


61 


the  use  of  the  common  reccwcry  in  barring  entailments  became  so 
universal,  that,  at  the  time  of  the  revolution,  there  was  rarely  an 
estate  tail  in  the  province.  In  Pennsylvania,  estates  tail  \\;ere  dis- 
tinctly recognized  in  the  charter  of  1681  ;  and  in  Virgiftift  a  law  was 
passed  in  1705,  to  take  away  from  the  courts  the  power  of  defeating 
them.(l) 

'60.  In  South  Carolina,  the  statute  de  donis  never  was  in  force,  but 
the  old  doctrine  prevails,  of  fees  conditional  at  common  law  ;  and  it 
has  been  held,  that  the  lien  of  a  judgment  or  decree  against  one  thus 
holding  lands,  after  the  birth  of  issue,  bars  the  right  of  the  issue  to 
take  ^^  per/onnam  donV\2) 

31.  In  Virginia,(a)  Kentucky, (i)  Tennessee,  North  Carolina,  In- 
diana,(c)  Georgia,  Mississippi,  Alabama,  Wisconsin  and  Michigan,  en- 
tailments are  expressly  abolished,  or  estates  tail  declared  to  be  estates 
in  fee-simple.  But,  in  Alabama  and  Mississippi,  an  estate  may  be 
granted  to  a  succession  of  donees  in  esse,  and  to  the  heirs  of  the  body 
of  the  remainder-man,  and,  in  default  of  such  heirs,  to  the  right  heirs 
of  the  donor  in  fee-simple. (3) 

82.  In  Illinois,  Missouri  and  Arkansas,  the  donee  in  tail  takes  a  life 
estate,  and  his  issue  a  fee-simple.(4) 

33.  In  New-Jerse3%(c?)  Ohio,  Missouri,  Illinois,  Arkansas,  and  Con- 
necticut, estates  tail  become  estates  in  fee-simple,  in  the  heirs  of  the 
original  owner.    In  Connecticut  (and  probably  in  the  other  States  men- 


(1)  Hawley  v.  Northampton,  8  Mass.  3  ; 
SuU.  on  Land.  T.  7.S  ;  4  Kent,  13,  14,  n.; 
Corbin  v.  Healy,  20  Pick.  514. 

(2)  4  Griff.  852;  Izard  v.  Izard,  1  Bai. 
Equ.  228 ;  see  Pearae  v.  Killian,  1  McMuU. 
231.  The  VjJiole  estate  is  held  to  be  in  the 
tenant.  T/ie  possihilUy  of  revei-ter  is  neither 
inheritable  nor  devisable  ;  nor  would  one 
interest  inei-ge  in  the  other.  1  Hill's  Cha. 
276.  A  conveyance  to  one,  "  his  heirs  and 
assigns  forever,  Imt  should  he  die  without 
lawful  issue  of  his  body,"  then  over,  gives 
the  grantee  a  fee-simple  absolute  at  common 
law.  Edwards  v.  Edwards,  2  Strobh.  Equ. 
101.  Tiie  words,  "have  lo:ined  to  A  during 
her  natural  life  and  after  her  death,  hath 
given  unto  the  heirs  of  her  body  which  shall 
survive  her,  to  be  equally  divided  amongst 
them,"  were  iicld  to  create  an  estate  tail  un- 
der the  laws  of  South  Carolina,  in  the  per- 
sonal property  granted,  so  as  to  vest  it  ai)so- 
lutely  ill  the  grantee,  and  by  her  marriage  in 
her  husband,  to  whose  administrator  it  be- 


longed after  their  deaths,  and  not  to  her 
heirs.  "Watts  v.  Clardy,  2  Florida,  369.  A 
testator,  after  tlie  decease  of  his  mother,  gave 
"  the  use"  of  tlie  estate  to  A  "  for  life,"  and, 
after  his  decease,  declared  the  same  to  be 
vested  in  the  male  issue  of  the  said  A,  and 
in  default  of  such,  in  the  issue  female  surviv- 
ing him,  and  if  a  general  failure  at  the  death 
of  A,  then  over.  Held,  the  estate  devised 
was  a  fee  conditional  at  common  law;  that 
the  will  gave  A  an  estate  for  life,  and  at  his 
death  to  his  issue  male,  in  their  default  to 
his  issue  female,  the  issue  taking  by  way  of 
limitation,  and  that  the  limitations  over,  in 
the  event  of  his  leaving  no  issue,  were  void 
cither  as  contingent  remainders  or  executory 
devises.     Birst  v.  Davics,  4  Strobh.  Equ.  37. 

(3)  N.  C.  Rev.  Sts.  258  ;  Ind.  Rev.  L.  209  ; 
3  Griff.  441-4,  578,  6G6,  781  ;  Mich.  L.  293  ; 
Zollicoffer  v.  Zollicoffer,  4  Dev.  &  B.  441  ; 
Wise.  Rev.  Sts.  313;  Virg.  Code,  500. 

(4)  Illin.  Rev.  L.  131;  Ark.  Rev.  St,  139  ; 
Misso.  Sts.  119. 


(a)  The  statute  on  the  subject  docs  not  change  into  a  fee  a  remainder  in  tail  expectant 
upon  another  estate  tail.     2  Wash.  35-6. 

(b)  Where  the  ancestor  takes  either  an  estate  in  fee,  defeasible  upon  his  death,  without 
issue,  or  a  fee- tail,  (converted  by  law  into  a  fee-simple,)  his  alienation  bars  his  issue  and  heirs 
who,  in  either  case,  cannot  claim  otherwise  than  by  descent.  Grimes  v.  Ballard,  8  B.  Hon. 
625;  Deboe  v.  Lower,  8  B.  Mon.  61G. 

(c)  By  the  Revised  Statutes  of  1838,  (p.  238,)  one  may  be  seized  of  an  estate  tail,  but 
after  the  second  generation  it  becomes  a  fee-simple. 

(d)  The  wife  has  dower,  and  the  husband  curtesy.  Rev.  C.  774-5.  By  statute,  in  New 
Jersey,  all  estates  tail  at  common  law  are  changed  into  an  estate  fur  life  in  the  first  taker, 
with  remainder  in  the  child  or  children  of  the  first  taker.  Morehouse  v.  Cotheal,  1  New 
Jersey,  480. 


Q2  QUALIFIED  AND  CONDITIONAL  FEES.  [CHAP.  III. 

tioned)  he  cannot  alienate,  and,  if  lie  leave  no  issue,  the  lands  revert. 
In  Connecticut,  the  statute,  which  establishes  the  rule  above  stated, 
seems  to  be  merely  an  affirmation  of  previous  decisions.  It  is  there 
held,  that,  if  the  tenant  convey  in  fee,  the  grantee  takes  a  base  fee, 
determinable  on  the  tenant's  death,  by  entry  of  the  issue.(l) 

34.  In  Yerraont,  the  constitution  provides,  that  the  legislature  shall 
regulate  entails  in  such  manner  as  to  prevent  perpetuities.  There  is  a 
similar  provision  in  the  constitution  of  Texas.  In  Vermont,  the  same 
rule  is  established  by  the  Eevised  Statutes  as  in  Connecticut.(2) 

35.  In  New  York,  an  estate  tail  may  still  exist,  for  the  benefit  of  a 
remainder  limited  upon  its  determination.(3)(a) 

36.  In  Pennsylvania,(i)  Maryland, (c)  Massachusetts, (cZ)  Maine  and 

(1)  Walk.  300;   1  Swift,   79;  Hamilton  v.  (  Sts.  131;  Ark.  Rev.  Sts.  265. 
Hempsted,  3  Day,  332;  Chappel  v.  Brewster,        (2)  4  Kent,    16;    Verm.   Rev.  Sts.   310; 
Kirb   175  ;  4  Conn.  179  ;  Allyn  v.  Mather,  9,    Tex.  Const,  art.  17. 
]  14;  Misso.  Rev.  Sts.  ch.  32,  s.  5  ;  lUin.  Rev.  '      (3)  1  N.  Y.  Rev.  Sts.  722. 


(a)  The  statute  of  New  York,  of  February  23,  1786,  abolishing  estates  tail,  and  providing 
that  all  persons,  who  then  were,  or  who,  but  for  that  statute,  would  thereafter,  by  virtue  of 
any  devise  or  conveyance,  become  seized  in  fee-tail  of  any  real  estate,  should  be  ^deemed  to 
be  seized  of  the  same  in  fee-simple,  has  been  construed  by  the  courts  of  New  York  to  in- 
clude estates  tail  in  remainder,  and  their  construction  is  followed  by  the  courts  of  the 
United  States.     Van  Rensselaer  v.  Kearney,  11  How.  U.  S.  297. 

A  testator,  by  his  will,  made  in  1805,  devised  the  use  and  improvement  of  bis  farm  to  A 
during  his  life,  and  after  his  death  to  B,  the  eldest  son  of  A,  and  to  the  heirs  of  his  body, 
and  their  heirs  and  assigns  forever;  but,  in  case  B  should  have  no  such  heirs,  then  to  C., 
the  brother  of  B,  anS  his  heirs;  held,  B  took  a  vested  remainder  in  tail  expectant  on  the 
termination  of  the  life  estate  of  A,  which,  by  the  statute  abolishing  entails,  was  converted 
into  a  fee-simple,  and  that  the  limitation  over  to  C  was  cut  off.  Barlow  v.  Barlow,  2 
Comst.  386. 

A,  by  a  will  which  took  effect  in  1783,  devised  lands  to  trustees  during  the  life  of  the 
testator's  grandson  B.,  to  preserve  contingent  remainders,  in  trust  to  permit  the  grandson 
to  receive  \he  rents  and  profits  during  his  life,  and  after  his  death  to  his  first,  and  every 
other  son  successively,  in  tail  male.  The  first  son  of  the  grandson,  who  was  born  after  the  will 
took  effect,  died  in  the  lifetime  of  his  father  without  issue.  Held,  the  remainder  which 
vested  in  such  son  at  his  birth,  was  immediately  converted  into  a  remainder  in  fee-simple. 
Van  Rensselaer  v.  Poucher,  5  Denio,  35. 

Where  an  estate  tail  in  remainder  was  limited  to  the  eldest  son  of  the  first  taker,  to 
whom  an  intermediate  life  estate  was  given,  and  became  vested  by  the  birth  of  a  son  prior 
to  the  act  of  1786,  abolishing  entails;  held,  by  the  operation  of  that  act,  the  estate  tail  in 
remainder  was  converted  into  a  fee-simple  in  remainder,  which,  on  the  death  of  the  re- 
mainder-man without  issue  in  1809,  and  before  the  termination  of  the  intermediate  life 
estate,  descended  to  his  father  as  his  heir  at  law.     Wendell  v.  Crandall,  1  Comst.  491. 

(6)  An  estate  tail  may  be  barred  by  a  common  recovery.  So,  in  Delaware,  by  fine  and 
recovery.     4  Kent,  71  n. ;  Purd.  278  ;  4  Griff.  1075. 

Wliether  an  entail  can  be  barred  by  deed  of  partition  between  tenants  in  common,  see 
Tiernan  v.  Roland,  15  Penn.  429. 

A  deed  from  a  tenant  in  tail,  purporting  to  bar  the  entail,  but  never  recorded,  as  required 
by  law,  and  thus  incompetent  to  bar  the  entail,  was  held,  nevertheless,  to  be  good  to  con- 
vey the  grantor's  right  of  possession,  and  therefore  admissible  in  evidence.  George  v.  Mor- 
gan, 4  Harris,  95  ;   Worrall  v.  The  Same,  ib. 

(c)  In  Maryland,  it  is  said,  docldng  estates  tail  by  common  recovery  was  abolished  in 
1782.  By  a  statute  of  1786,  estates  tail  general,  subsequently  created,  are  abolished.  But 
this  act  does  not  apply  to  special  entailment,  which  may  be  barred  by  deed  or  recovery,  are 
chargeable  with  debts  onXy  by  mortgage,  are  not  devisable,  and  descend  only  to  issue.  4 
Kent,  15-16  n.  See  Newton  v.  Griffith,  1  Harr.  and  G.  Ill  ;  3  H.  and  McH.  244;  1  Harr. 
J.  465. 

Where  there  was  a  devise  of  an  estate  in  fee,  with  a  limitation  over,  after  a  dying  with- 
out issue,  it  was  formerly,  in  Maryland,  converted  into  an  estate  tail,  and  the  limitations 
over  operated  by  way  of  remainder  ;  but  the  act  of  descents  now  converts  that  estate  tail  into 
an  estate  in  fee.     Watkins  v.  Sears,  3  Gill.  492. 

{d)  Devise  of  one  undivided  half  of  certain  land  to  A  in  fee-simple,  and  the  other  half  to 
B  in  fee-tail  general.      Before  the  act  of  1791,  c.  60,  the  parties  made  partition  by  deed, 


CHAP.  III.] 


AND  ESTATES  TAIL. 


(33 


Delaware,  estates  tail  may  be  conve3'ec],  and  in  Rhode  Island  and  Vir- 
ginia, conveyed  or  devised,  so  as  to  pass  a  fee-simple.  In  Massachu- 
setts, Maine  and  Virginia,  they  are  liable  for  debts,  and.  a  sale  for 
creditors  passes  a  fee-simple.  In  Massachusetts,  a  remainder  in  tail  is 
not  tlius  liable,  but  a  tenant  for  life  and  a  reinaindcr-man  in  tail  may 
join  in  conveying  the  fee-simple.     So  in  Maine.(l) 

37.  In  Pennsylvania,  the  purchaser  of  an  estate  tail  on  execution  may 
bar  the  entailment,  b}^  suffering  a  recovery  and  vouching  the  tenant.(2) 

38.  In  New  Hampshire,  Chancellor  Kent  says,  entailments  may  still 
be  created,  though  in  practice  almost  unknown.  In  this  State,  as  in 
Pennsylvania  and  Delaware,  they  may  be  barred  by  a  common  reco- 
very.(3)     By  a  recent  act,  they  may  also  be  barred  by  deed. (4) 

39.  In  Pennsylvania, -where  the  tenant  in  tail  dies,  the  land  descends 
to  his  heir  at  common  law.(5)  In  Virginia,  if  escheatable  for  defect  of 
blood,  the  estate  descends  according  to  the  limitation. (6)(a) 


(1)  Mass.  Rev.  St.  405-12-16-63;  Purd. 
Dig.  279;  1  Smith,  St.  143-4;  1  Vir.  Rev. 
C.  158  ;  4  Grif.  1057  ;  Riggs  v.  Sally,  3  Shopl. 
408;  Maine  Rev.  Sta.  372;  Dela.  Rev.  Sts 
271. 

(2)  Purd.  280.  See  Robb  v.  Ankeriy,  4 
Watts  &  S.  128. 


(3)  4  Kent,  71,  n.     See  Frost  v.  Cloutman, 
7  N.  II.  1. 

(4)  St.  1837,  c.  340. 

(5)  Purd.  Dig.  279  ;  Jenks  v.  Bapkliouse, 
1  Bin.  96. 

(6)  1  Vir.  Rev.  C.  159. 


each  releasing  to  the  other,  his  heirs  and  assigns  forever,  that  part  which  was  set  off  to  the 
other.  B  conveyed  his  portion,  with  warrant}',  to  C,  who  conveyed  it  to  D,  and  D  to  E. 
After  B's  death,  his  heir  in  tail  brings  an  action  against  E  to  recover  tlie  land.  Held,  he 
was  entitled  to  recover  one  moiety  of  it.     Bu.Kton  v.  Uxbridge,  10  Met.  87. 

A  deed  of  un  estate  tail  was  made,  purportmg  to 'be  in  consideration  of  a  sum  of 
money,  and  of  a  lease  of  the  land  to  the  grantor  for  one  year,  at  an  apparently  nominal 
rent.  Before  the  lease  expired,  the  grantee  made  a  declaration  of  trust,  inter  alia,  to  per- 
mit the  grantor  to  have  possession  for  life ;  and  the  grantor  remained  in  possession  from  the 
time  of  giving  his  deed.  lle\t\,  prima  facie,  the  deed  was  given  upon  valuable  consideration 
and  bona  fide,  and  therefore  was  pj-i'ma/acse  .sufficient  to  bar  the  entailment.  Nightingale  v. 
Burrell,  15  Pick.  104.  By  St.  1851,  568,  equitable  estates  tail  may  be  barred  in  the  same 
manner  as  legal  estates,  by  a  conveyance  in  fee-simple  ;  and  the  grantee  may  demand  and 
enforce  a  conveyance  to  him  of  the  outstanding  legal  title. 

(a)  By  a  late  English  Statute,  3  &  4  Wm.  4,  ch.  74,  tenant  in  tail  may  by  deed,  duly  en- 
rolled, alienate  in  fee-simple  or  for  any  less  estate;  subject,  however,  to  the  rights  of  any 
prior  tenant,  whose  estate  was  created  by  the  same  settlement  as  the  estate  tail,  unless 
such  tenant  consent  to  the  alienation.  1  Steph.  Comm.  237.  See  further  Riggs  v.  Sally, 
15  Maine,  408;  Kgertouu.  Earl,  &c.,  7  Eng.  L.  &  Equ.  170  ;  Monypenny  v.  Dering,  8  PJng.  L. 
&  Equ.  42. 


64 


ESTATE  FOR  LIFE. 


[CHAP.  IV. 


CHAPTEll   IV. 

ESTATE   FOR   LIFE. 


1.  Definition. 

2.  How  created. 

3.  Diflerent  forms  of  life  estates. 
6.  Merger — estate  pour  autre  vie. 
8.  Estovers. 

12.  Praying  in  aid. 

13.  Title  deeds. 


16.  Payment  of  incumbrance.'?. 

22.  Transfer  of  estate. 

23.  Forfeiture. 

40.  Estate  pour  autre  vie. 
56.  Termination   of  estate    for   life ; 
sumption  of  death. 


pre- 


1.  An  estate  for  life  is  a  freehold  interest  in  lands,  the  duration  of 
which  is  confined  to  the  life  or  lives  of  some  particular  person  or  per- 
sons, or  to  the  happening  or  not  happening  of  some  uncertain  event.(l) 

2.  An  estate  for  life  may  arise  either  from  the  act  of  parties  or  from 
operation  of  law. (2) 

3.  A  life  estate  may  be  created  by  act  of  parties^  either  b}^  an  ex- 
press disposition  for  the  life  of  the  grantee  or  devisee,  or  of  a  third  per- 
son, or  both, (a)  or  by  a  general  disposition,  specifying  no  limit,(^)  which 
in  a  deed  cannot,  in  general,  pass  an  inheritance  for  want  of  the  word 
heirs.{2>){c)  So  an  estate  limited  upon  a  contingency,  as  to  a  woman 
during  her  widowhood, (cZ)  or  to  a  person  quamdiu  bene  se  gesserit,  is  a 
life  estate,  in  the  hands  of  the  original  tenant,  or,  in  the  case  of 
widowhood,  of  her  grantee,  or  a  purchaser  from  the  administrator  of 
such  grantee  ;  though  it  may  terminate  sooner  than  the  owner's  life.  If 
given  to  a  woman  for  her  life  or  widowhood,  she  holds  only  during 
widowhood.  The  provision  is  a  limitation,  not  a  condition.  But,  where 
one  devises  to  his  wife  for  life  if  she  remain  so  long  his  widow,  and,  if 


(1)  1  Cruise,  16. 

(2)  lb. 


(3)  lb.  77  ;  Co.  Lit.  42  a. 


(a)  Agreement  by  a  lessor  not  under  seal,  that  he  would  not  turn  out  the  tenant  bo  long 
as  he  paid  rent.  Held  invalid,  because  constituling  a  life  estate,  wiiich  can  be  created  only 
by  deed,  Doe  v.  Brower,  8  E.  165. 

(h)  An  estate  may  be  so  situated,  that  it  may  last  either  for  the  tenant's  own  life  or  for 
that  of  another  person,  according  to  the  happening  or  not  happening  of  some  uncertain 
event.  Thus,  a  husband,  before  the  birth  of  issue,  has  an  interest  in  the  wife's  lands  for 
her  life;  liable,  however,  to  be  changed  into  an  interest  for  his  life,  upon  the  birth  of  issue. 
Lease  to  A  "for  the  natural  life  of  A  and  wife,  the  same  being  secured  for  the  separate 
use,  for  tlic  maintenance  of  A  and  wife,  and  for  no  other  use."  After  the  death  of  A,  the 
wife  may  defend  against  an  action  of  ejectment  by  the  lessor.  Towers  v.  Craig,  9  Humph. 
467. 

(c)  A  mere  life  estate  may  bo  created,  though  words  of  perpetuity  be  used  in  the  limita- 
tion. Thus,  where  there  was  a  bequest  of  a  leasehold,  after  limitations  for  life,  to  A,  his 
executors,  administrators  and  assigns,  during  the  term  of  his  natural  life;  held,  a  life  estate 
in  A.     Morrall  v.  Sutton,  4  Beav.  478,  5,  100. 

[d)  Such  limitation  is  valid,  without  limiting  over  the  estate  upon  her  marriage.  Cop- 
page  V.  Alexander,  2  B.  Mour.  314.  See  Sims  v.  Aughtery,  4  Strobh.  103;  Slocum  v. 
Slocum,  21  Edw.  Cha.  613.  A  testator  provided  in  his  will,  "that  the  proceeds  from  the 
sale  of  my  real  estate  shall  be  loaned  out  and  atnply  secured,  so  that  my  wife  may  get  the 
interest  annually,  as  long  as  she  shall  remain  my  widow,  for  the  support  of  herself  and  my 
daughter;  and,  if  at  anytime  she  should  marry,  then  my  whole  property,  principal  and 
interest,  to  go  to  my  child."  Held,  the  wife  was  entitled  to  the  income  on  the  whole  estate 
of  the  testator  during  widowhood.  Dale  v.  Dale,  1  Harris,  446.  A  devise  by  a  husband  to  his 
wife,  "  during  her  natural  life  or  widowhood,"  is  valid  ;  and  the  estate  is  terminated  by  the 
marriage  of  the  widow.     Walsh  v.  Matthews,  11  Mis.  131. 


CHAP.  IV.]  ESTATE  FOR  LIFE.  (35 

shu  many,  her  husband  to  have  no  other  privilege  than  tliat  of  living 
on  the  place  for  her  life,  and  no  longer;  this  gives  the  wifo  an  estate 
for  her  life,  not  subject  to  be  incumbered  by  the  hu3ijlind.(l)  So,  a 
conveyance,  for  so  long  a  time  as  certain  salt-works  proposed  to  be 
erected  shall  continue  to  be  used,  passes  a  life  estate  determinable  by 
the  disuse  of  such  \vorks.(2) 

4.  A  lease  made  by  tenant  in  fee-simple /or  term  of  life,  not  mcutiou- 
ing  whose  life,  shall  be  for  the  life  of  the  lessee, — a  deed  being  always 
construed  most  stronglj^  against  the  maker.  But  a  lease  in  this  form 
b}^  tenant  in  tail  will  be  for  the  life  of  the  lessor.  So  a  lease  without 
special  limitation  by  a  tenant  for  life ;  because  this  estate  he  may  law- 
fully make,  while  a  conveyance  for  the  lessee's  life  would  be  a  wrong- 
ful act.(B) 

6.  A,  tenant  for  life,  leases  to  B,  on  condition  that  if  B  die  leaving 
A,  the  land  shall  revert  to  A.  All  the  estate  passes  under  the  condi- 
tion.(4) 

5  or.  A  grant  for  the  life  of  one  not  in  existence  is  void  ;  but  if  for 
the  lives  of  three  persons,  one  of  whom  has  no  existence,  it  is  good  for 
the  lives  of  the  others.(5) 

6.  One  holding  an  estate  for  the  life  of  another,  is  called  tenant  ^owr 
autre  vie.  An  estate  '■'■pour  autre  vi'e"  will  merge  in  a  remainder  tor  a 
man's  own  life — being  an  inferior  interest  to  the  latter,  and  the  lowest 
species  of  freehold.  But,  if  lands  are  conveyed  to  a  person  for  his  own 
life  and  that  of  A.  and  B,  he  has  one  freehold,  determinable  on  his  own 
death  and  the  deaths  of  A  and  B,  and  not  two  distinct  estates ;  and 
there  is  no  merger.  Lord  Coke  remarks,  fliat  the  books  are  very 
plentiful  with  cases  on  this  subject,  "  whereof  you  may  disport  your- 
selves for  a  time."(6) 

7.  There  are  several  incidents  to  an  estate  for  life. 

8.  Tenant  for  life  is  entitled  to  estovers,  estoveria  rationabilia,  or  allow- 
ance of  necessary  wood  from  the  land.(7) 

9.  Estover  is  derived  from  the  French  word  estoffe — material. (tt)  The 
corresponding  Saxon  word  is  botes.{8) 

10.  There  are  three  kinds  o?  estovers  or  botes:  house-bote,  which  is 
two-fold,  estoverium  ardendi  et  cedificandi — of  burning  and  building ; 
plough-bole,  "arandi"— of  ploughing;  and  hay-bo'te,  "claudendi"— of  en- 
closing or  feucing.(9) 

11.  Where  a  lessor  covenants  that  the  tenant  for  life  shall  have  thorns 
for  hedges,  by  the  assignment  of  the  lessor's  bailiff,  the  tenant  may  still 
cut  thorns  without  such  assignment,  having  an  implied  right  to  do  so. 


(1)  Pease  v.  Owens,  2  Hayw.  234;  The 
People  V.  Gillis,  2-t  Wend.  201;  Brown  v. 
Brown,  8  N.  II.  93  ;  Craig  v.  Watt,  8  Watts, 
498;  Coppage  v.  Alexander,  2  B.  Monr.  316; 
Rosaboom  v.  Van  Vechten,  5  Denio,  414; 
Llojd  V.  Lloyd,  10  Eug.  L.  &  Equ.  139. 

(2)  Kurd  V.  Gushing,  7  Pick.  169.  See 
Cook  V.  Bisbee,  18  Pick.  527. 

(3)  Co.  Lit.  42,  a,  b;  Jackson  v.  Van 
Hoesen,  4  Cow.  325  ;  Whittome  v.  Lamb,  12 


Mees.  &  W.  813. 

(4)  Co.  Lit.  42  a,  n.  11. 

(5)  Doe  V.  Edwards,  1  Mecs.  &  W.  533. 
(G)  Abbot,   &c.  V.  Bokenham.  Dyer,  10  b; 

Bowles'  case,  11  Hep.  83;  4  Kent,  26;  Co. 
Lit.  41  b. 

(7)  Co.  Lit.  41  b. 

(8)  Spel.  Glos. 

(9)  Co.  Lit.  41  b;  Heydon's  case,  13  Rep. 
68. 


(a)  Hence,  the  EDglish  word  stuff. 

Vol.  I. 


ESTATE  FOR  LIFE. 


[CHAP.  IV. 


Otherwise,  if  the  tenant  had  covenanted  that  he  would  not  cut  without 
assignment.(l) 

11  rt.  A  tenant  for  life,  of  a  farm  of  165  acres,  is  not  entitled  to  fire- 
bote  for  the  dwelling  of  a  farmer  or  laborer,  in  addition  to  fire-bote  for 
the  princij^al  dwelling.  A  custom  to  that  effect  would  be  unreasonable 
and  invalid  (2) 

12.  In  all  real  actions,  tenant  for  life  vasij  pray  in  aid,  or  call  for  the 
assistance  of,  the  owner  in  fee  to  defend  his  title,  because  the  former  is 
not  generally  supposed  to  have  the  evidences  of  title.(3) 

13.  When  and  how  far  a  tenant  for  life  is  entitled  to  possession  of 
the  title-deeds,  seems  to  be  a  point  somewhat  unsettled.  In  one  case,  it 
was  said  to  be  a  common  practice  for  the  Court  of  Chancery  to  take  them 
from  him  and  deposit  them  in  court.  And  the  court  will  take  care  of 
the  deeds,  where  the  tenant  manifests  an  indifference  on  the  subject,  and 
parted  with  the* possession  of  them.  But  on  the  other  hand  it  has  been 
doubted,  whether  Chancery  will  interfere,  either  to  take  the  deeds  from 
the  tenant  or  restore  them  to  him.  It  will  refuse  to  give  them  to  a  re- 
mainder-man, where  there  are  intermediate  remainders.(4)(a) 

14.  In  an  action  at  law  to  recover  title  deeds,  the  defence  was,  that 
the  defendant  held  under  a  cestui  que  trust,  claiming  by  a  written  decla- 
ration of  trust.  The  plaintiff  contended,  that  the  court  would  not  notice 
a  merely  equitable  title.  Held,  the  court  either  could  or  could  not  notice 
such  title.  If  the  latter,  this  was  because  such  title  was  doubtful,  and  there- 
fore the  plaintiff  must  go  into  equity  to  settle  it.  If  the  former,  the  de- 
fendant was  entitled  to  the  deeds.   In  either  case,  the  plaintiff  must  fail.(5) 

15.  It  will  be  seen  hereafter,  (ch.  10,)  that  if  a  widow  detains  the 
charters  of  the  estate,  she  thereby  forfeits  her  dower,  and  that  a  jointress 
will  be  compelled  to  deliver  up  title  deeds,  upon  having  her  jointure 
confirmed. (6) 

16.  Tenant  for  life  is  not  bound  to  pay  the  principal  of  any  sum 
charged  upon  the  inheritance.  Hence,  if  he  does  pay  it,  he  becomes 
a  creditor  of  the  estate, (6)  standing  in  place  of  the  original  creditor, 
and  being  entitled  to  the  charge  for  his  own  benefit,  unless  he  have  in 
some  way  indicated  a  contrary  intent.  But  the  smallest  demonstration 
is  sufficient ;  and  he  can  claim  no  interest  during  his  life.  The  old 
rule  required  a  tenant  for  life  to  bear  one-third  of  the  debt ;  but  this 


(1)  Dyer,  19  b.  pi.  11,  5.     Shelby,  J.,  dis- 
sented.    Stukely  v.  Butler,  Hob.  173. 

(2)  Sarles  v.  Sarles,  3  Sandf.  Ch.  101. 

(3)  Booth  on  R.  A.  60.    See  Sohier  v.  Wil- 
liams, Curtis'  R.  479. 

(4)  Ivie  V.  Ivie,    1  Atk.  431;   Papilloa  v. 


Voice,  2  P.  "Wms.  477  ;  Hicks  v.  Hicks,  Dick. 
650;  Ford  v.  Peering,  1  Ves.  jun.  72.  See, 
as  to  title  deeds,  Dryden  v,  Frost,  3  My.  &  C. 
670. 

(5)  Atkinson  v.  Baker,  4  T.  R.  229. 

(6)  See  Detinue  of  Charters,  Jointure. 


(a)  PWma/acte  the  tenant  for  life  is  entitled  to  them;  and  the  remainder-man  can  call 
for  them  only  to  answer  some  specific  purpose.  Shaw  v.  Shaw,  12  Price,  163.  In  a  late 
case  it  has  been  held,  that  the  owner  of  the  inheritance  is  entitled  to  them,  though  there 
be  an  attendant  term  for  1,000  years.  Austin  v.  Croome,  1  C.  &  Mar.  653.  Where  a  lessee 
has,  for  twenty  years  after  the  expiration  of  his  term,  had  possession  of  the  lease,  such  pos- 
session is  deemed  adverse,  and  Chancery  will  not  interfere  to  have  it  delivered  up.  Dean, 
&c.  V.  Dorrington,  Holt  Eq.  59. 

(h)  Held,  in  Kentuckj',  that  he  does  not  thereby  become  a  creditor  of  those  in  remainder. 
King  V.  Morris,  2  B.  Monr.  104.  Charges  upon  the  estate,  paid  by  such  tenant,  are  prima 
facie  kept  alive  ;  not  merged  in  the  fee.    Faulkner  v.  Daniel,  3  Hare,  217. 


CHAP.  IV.] 


ESTATE  FOR  LIFE. 


67 


principle  lias  been  pronounced  absurd,  making  no  allowance  for  the 
dill'orent  ages  in  different  cases,  and  overruled. (1)         ^_      * 

17.  In  case  of  a  jointure,  where  the  jointress  and  the  issue  claim 
under  one  settlement,  they  shall  contribute  proportionally  to  the  dis- 
charge of  a  prior  incumbrance.(2) 

18.  Tenant  for  life  is  bound  to  keep  down  the  interest,  or,  if  a  dow- 
ress,  one-third  of  the  interest,  upon  incumbrances,  whether  it  accrued 
before  or  since  the  commencement  of  his  estate,  and  though  it  exhaust 
the  rents  and  profits.(a)  If  the  incumbrancer  neglect  to  collect  the  in- 
terest from  the  tenant  for  life,  the  reversioner,  &c.,  may  file  a  bill  to 
charge  the  rents  or  have  the  estate  sold.  But,  where  the  latter  for  a 
series  of  years  pays  the  interest,  far  exceeding  the  pro6ts,  it  is  prima 
facie  evidence  that  he  meant  to  discharge  the  estate,  especially  if  set- 
tled ultimately  on  his  family.(3)(i) 


(1)  Jones  V.  Morgan,  1  Bro.  R.  205 ;  Earl, 
Ac.  V.  Hobart,  3  Swanst.  199  ;  White  v.  Whiio, 
4  Yes.  33  ;  Hunt  v.  Walking,  1  Humph.  498; 
Waiuright  v.  Hardisty,  2  Bcav.  3G3  ;  Bulwer 
V.  Astloy,  1  Phil.  422. 

(2)  Carpenter  v.  Carpenter,  1  Vern.  440. 

(3)  Tracy^  v.  Hereford,  2  Bro.  R.  128  ;  Pen- 
rhjn  V.  Hughes,   5  Ves.   99;  4  Kent,  74;  1 


Bro.  R.  220  ;  Burgea  v.  Mawbey,  1  Turn.  & 
R.  167;  Hunt  v.  Watkins,  1  Humph.  498; 
Williams,  3  Bland,  245;  Lindsey  v.  Stevens, 
5  Dana,  108;  Tucker  V.  Boswell,  5  Beav.  607; 
Glengall  v.  Barnard,  lb.  245 ;  Bull  v.  Birk- 
beek,  2  Y.  &  Coll.  Cha.  447  ;  Caulfield  v.  Ma- 
guire,  2  Jones  &  Lat.  141. 


(a)  So,  an  annuity  is  charged,  first  upon  the  life  estate,  then  upon  the  inheritance.  Cason 
V  Lawrence,  3  Edw.  43.'  So,  an  assessment  will  bo  ajjportioned  upon  the  two  estates. 
Cairns  v.  Chabert,  3  lb.  312.  And  if  a  tenant  for  life  neglect  to  pay  the  taxes  upon  the 
estate,  Chancery  will  appoint  a  receiver.  Astreen  v.  Flanagan,  3  Edw.  279.  The  expense 
of  draining  land  was  charged  upon  a  fund  absolutely  belonging  to  an  infant  tenant  for  life, 
and  not  upon  tlio  land.     Stanhope  v.  Stanhope,  3  Beav.  547. 

Tenant  for  life  cannot  charge  tiie  remainder-man  for  improvements  made  by  the  former. 
Caldecott  v.  Brown,  2  Hare,  344;  Thurston  v.  Dickenson,  2  Rich.  Equ.  317. 

Where  a  tenant  for  life  has  power  to  sell  in  fee,  reserving  a  ground  rent,  he  cannot  bind 
the  remainder-man  with  special  covenants,  except  in  pursuance  of  his  power.  Nagleo  v. 
lngera(jll,  7  Barr.  185.  But  his  agreements  are  evidence  of  the  boundaries  and  of  the  con- 
ditions of  the  estate  at  the  time  of  the  grant.     lb. 

Where  a  building  is  insured,  in  which  there  is  a  life  estate,  in  case  of  a  partial  destruc- 
tion of  it,  the  insurance  money  is  to  be  applied  to  repairs.  Brough  v.  ITiggins,  2  Gratt.  408. 
The  tenant  for  life  is  not  entitled  to  receive  the  principal  of  the  money  paid  for  a  loss,  but 
only  the  interest,  deducting  the  premiums.     Graham  v.  Roberts,  8  Ired.  Equ.  99. 

{b)  In  case  of  tenant  for  life,  remainder  in  fee,  of  lands  mortgaged,  the  parties  contribute 
to  a  discharge  of  the  incumbrance,  according  to  the  relative  value  of  their  respective  inter- 
ests, calculated  according  to  the  value  of  the  life  estate  by  the  common  tables.  Foster  v. 
Hilliard,  1  Story,  77.  Real  estate  was  devised  to  A  for  life,  remainder  to  certain  minors  ia 
fee.  A,  with  con.sent  of  the  guardians,  sold  the  land,  but  died  before  receiving  the  whole 
consideration,  and  tiie  residue  was  received  by  his  executors.  Held,  the  rights  of  the  par- 
lies were  fixed  at  the  time  of  sale,  and  the  executors  and  the  remainder-men  should  divide 
the  proceeds  according  to  the  interests  of  A  and  the  remainder-men  at  that  time. 

Also,  that  the  interest  of  the  tenant  for  life  was  to  be  determined,  not  bj-  the  time  ofhiB 
death,  but  by  the  value  of  his  life,  as  ascertained  bj'  the  common  tables  at  the  time  of  sale. 
Thus,  altliough  he  died  within  four  years  from  the  sale,  his  interest  was  to  be  calculated  for 
about  twenty  years,  that  being  the  estimated  duration  of  his  life.  lb.  It  is  held,  that  there 
is  no  general  rule  for  estimating  the  relative  *alue  of  a  life  estate  and  reversion  ;  but  the 
most  convenient  course  is  to  sell  the  whole  estate,  and  divide  the  proceeds.  Atkins  v. 
Kron,  8  Ired.  Equ.  1.  See  William.'?,  3  Bland,  221;  Brisled  v.  Wilkin.s,  3  Hare,  240.  The 
dividends  of  a  sum  of  stock  were  ordered,  upon  petition,  to  be  paid  to  A  for  her  life,  and, 
after  her  decease,  to  B  for  her  life;  but  an  order  for  the  transfer  of  the  fund,  after  the  death 
of  the  survivor  of  them,  was  refused.  Lowndes'  Trust,  in  re,  6  Eng.  Law  and  Eq.  Rep.  60 ; 
Staples,  9  ib.  186.  A  terre-tenant  is  not  bound  to  go  beyond  the  profits  of  the  land,  in 
keeping  down  incumbrances.  Jones  v.  Sherrard,  2  Dev.  &  B.  Eq.  1S4.  A  tenant  by  the 
curtesy  must  pay  all  the  interest  accruing  during  Lis  estate,  but  not  before.     Ibid. 


ESTATE  FOR  LIFE. 


[CHAP.  IV. 


19.  The  rule  above  stated  applies  only  to  mortgages  and  other  charges 
upon  the  inheritance.  With  regard  to  renewal  leases,  in  England,  and, 
so  far  as  they  are  known,  in  the  United  States,  the  charges  of  renewal 
are  shared  by  the  tenant  for  life,  in  proportion  to  the  benefit  which  he 
derives  from  it  under  the  particular  circumstances  ;  and  this  is  referred 
to  a  master  to  settle. (1) 

20.  In  general,  where  tenant  in  tail  pays  off  an  incumbrance,  it  is 
understood  to  be  done  in  discharge  of  the  estate,  because  he  has  the 
power  of  making  it  his  own.  But  such  tenant,  restrained  as  to  aliena- 
tion, though  having  powers  of  leasing  and  jointuring,  stands  in  this 
respect  like  a  tenant  for  life.(2) 

21.  If  a  mortgagee,  after  a  neglect  by  the  tenant  for  life  to  pay  the 
interest,  purchase  the  estate  for  life,  and  then,  after  the  tenant's  death, 
bring  a  bill  to  foreclose  ;  he  shall  be  charged  in  his  account  with  all 
the  arrears  which  accrued  before  such  purchase.  He  woukl  have  been 
bound  in  this  way  had  he  taken  possession  as  mortgagee.(3) 

22.  Tenant  for  life,  unless  expressly  restrained,  may  transfer  the 
whole  or  any  part  of  his  estate  to  a  third  person,  in  any  way  which 
shall  not  injure  or  endanger  the  remainder  ;  or  he  may  join  with  the 
owner  in  fee  in  alienating  the  entire  inheritance. (a)  In  New  Jersey, 
a  statute  provides  that  the  assent  of  the  next  owner  to  a  conveyance 
by  tenant  for  life  shall  appear  of  record.(4:)(Z)) 

23.  It  is  one  of  the  incidents  of  a  tenancy  for  life,  that  for  certain 
acts  done  b}^  the  tenant  the  estate  may  be  forfeited.  We  shall  have 
occasion,  hereafter,  to  consider  this  subject  in  one  point  of  view,  under 
the  liead  of  Waste  (Ch.  18.)  There  is  another  ground  of  forfeiture, 
which  may  properly  be  considered  here. 

24.  At  common  law,  where  a  tenant  for  life  undertook  to  convey 
by  feoffment  a  larger  estate  than  he  himself  owned,  such  interference 
with  another's  title,  operating  to  divest  the  remainder  or  reversion,  was 
punished  by  forfeiture  of  the  estate  for  life  to  the  remainder-man  or 
reversioner.  This,  however,  was  not  the  only  ground  of  forfeiture ;  for 
where  tenant  for  life  of  a  rent  levied  a  fine  of  such  rent,  although 
nothing  more  passed  thereby  than  his  lawful  estate,  still  a  forfeiture 
was  incurred. (5)  This  principle,  being  founded  in  the  feudal  system, 
according  to  which  such  a  convej^ance  was  a  renunciation  of  the  con- 
nection between  the  lord  and  his  vassal, (c)  is  for  the  most  part  obsolete 
in  American  law. (6)     It  is  said  by  one  distinguished  commentator,  that 


(1)  4  Kent,  75.     See  Reeves  v.  Creswick, 
3  Y.  &  Coll.  715. 

(2)  Shrewsbury  v.  Same,  1  Ves.  jun.  227. 

(3)  5  Ves.  99. 

(4)  1  Cruise,  81 ;   IN.  J.    Rev.    C.    348 ; 
King  V.  Sharp,  6  Humph.  55. 


(5)  Gilb.  Ten.  38-9.  See  Dehon  v.  Red- 
fern,  Dudl.  Equ.  (S.  C.)  115;  Acklandv.  Lut- 
ley,  9  Ad.  &  Ell.  879. 

(6)  Walk    Intro.    277;    4   Kent,    83-4; 
M'Corry  v.  King,  3  Humph.  267. 


(a)  It  has  been  held  that  a  proviso  against  alienation  is  void.  Rochford  v.  Hackman, 
10  Eng.  L.  &  Equ.  64. 

(b)  In  Maine,  he  may  join  with  the  remainder-man  in  tail,  in  passing  a  fee-simple.  Me. 
Rev.  St.  372.  The  provision  in  Massachusetts  Rev.  Sts.  c.  59,  sec.  28,  that  no  conveyance 
of  an  estate  in  fee  or  for  life,  nor  any  lease  for  more  than  seven  years,  "  shall  be  valid  and 
effectual  against  any  other  person  than  the  grantor,  liis  heirs,  &c.,  unless  it  be  made  by  deed 
recorded,"  does  not  dispense  with  ttie  necessity  of  a  deed,  in  order  to  pass  an  estate  for  life, 
even  as  against  the  grantor  and  his  heirs.     Stewart  v.  Clark,  13  Met.  79. 

(c)  Tenant  for  life  is  sometimes  called  an  implied  trustee.  Joye  v.  Gunnels,  2  Rich.  Equ. 
259. 


CHAP.  IV.]  ESTATE  FOR  LIFE.  69 

scarcely  a  direct  decision  upo)!  the  subject  is  to  be  found  in  our  Ameri- 
can books;  and  another  is  of  opinion,  that,  as  the  form  and  nature  of 
American  conveyances  is  that  of  a  grant^  which  passes  nothing  more 
than  the  grantor  is  entitled  to,  the  doctrine  of  forfeiture  isYiot  in  force, 
even  independently  of  statute  provisions,  in  the  United  States.(l)  It 
is  remarked  by  the  court  in  Massachusetts,  that  at  common  law,  a  bar- 
gain and  sale  could  not  work  a  forfeiture  or  di.scontinuance;  to  the 
latter  of  which  livery  of  seizin  or  something  equivalent  is  essential. 
But  a  bargain  and  sale,  covenant  to  stand  seized,  or  release,  with  a 
general  icarranty  annexed,  may  produce  a  discontinuance,  where  the 
warranty  descends  upon  him  who  hath  a  right  to  the  lands.(2)(a) 

25.  It  Avas  held  in  Pennsylvania,  as  early  as  1798,  that  a  statute, 
making  the  registry  of  a  deed  equivalent  in  effect  to  liverij,  did  not  give 
to  the  recorded  deed  of  a  tenant  by  the  curtesy,  the  operation  of  livery 
in  forfeiting  the  estate.  The  deed  was  a  quit-claim  in  regard  to  the 
covenants;  but  the  words  used  were  "grant,  bargain,  sell,  alien3,  re- 
lease, enfeoff  and  confirm."  So,  in  Maine,  a  deed  of  release  and  quit- 
claim of  the  fee,  is  no  forfeiture. (3)(6) 

26.  Whether  the  doctrine  of  forfeiture  is  still  in  force  or  not,  it  is  in- 
applicable where  there  is  no  change  of  possession  attending  the  con- 
veyance. Thus,  if  the  tenant  convey  to  A,  even  with  general  warranty, 
immediately  take  back  a  conveyance  from  him  by  quitclaim  deed,  and 
then  mortgage  to  A,  remaining  all  the  time  in  possession  ;  this  works 
no  forfeiture.(4) 

27.  Forfeiture  seems  to  be  unknown  in  Pennsylvania,  Virginia,  ISTcw 
York,  Connecticut  and  Massachusetts. 

28.  In  Massachusetts,  Michigan,  Indiana,  New  Hampshire,  Vermont 
and  New  York,  it  is  expressly  abolished  by  statute. (5)(c) 

29.  In  North  Carolina,  the  Ptevised  Statutes  provide  that  a  convey- 
ance hy  a  widoio  shall  pass  no  more  than  her  own  lawful  estate. 

30.  In  Tennessee,  a  deed  of  conveyance  operates  as  a  grant,  not  a 
feoffment^  and  passes  only  the  grantor's  actual  interest.  So  in  Virginia. 
In  Kentucky,  a  deed,  though  with  warranty,  passes  only  the  grantor's 
estate.     But,  if  he  warrant  for  his  heirs,  they  are  barred  to  the  value 


(1)  5  Dane,  5,  11 ;  4  Kent,  106. 

(2)  Stevens  v.  Wiriship,  1  Pick.  327. 

(3)  M'Kee  v.  Pfont,  3  Dall.  486 ;  Bell  v. 
Twilight,  34  Maine,  500. 

(4)  Stevens  v.  Winship,  1  Pick.  318. 

(5)  M'Kee  v.  Pfont,  3  Dal.  488 ;  i  Swift, 


84;  IN.  Y.  R.  S.  739;  Verm.  Rev.  St.  310; 
N.  H.  Kov.  St.  242-3 ;  Mass.  Rev.  St.  405 ; 
Midi.  Rev.  St.  258;  5  Dane,  511;  Grout  v. 
Townsond,  2  Hill,  554;  11  Conn.  557;  3 
Dana.  291. 


(a)  In  a  previous  ca.se,  in  the  same  State,  the  Engli.sh  doctrine  of  forfeiture  was  inciden- 
tally recognized  as  in  force.     Grant  v.  Chase,  17  Mass.  446. 

{b)  "  The  obvious  purpose  of  the  provision  (substituting  a  deed  for  a  feoffraent)  was 
to  dispense  with  actual  investiture,  without  imparting  to  its  substitute  the  feudal  and 
almost  inconceivable  eO'ect  of  displacing  lawful  estates,  and  turning  them  to  a  mere  right." 
"The  object  was,  to  give  without  the  aid  of  feudal  ceremonies  the  legal  seisin  for  lawful 
purposes."  Sarah,  &c.,  5  Rawle,  113.  See  Salmon  v.  Clagett,  3  Bland,  172;  Dawson  v. 
Daw.son,  Rice,  243. 

(c)  So  in  Wisconsin.  Rev.  Sts.  ch.  59,  s.  4  ;  Ind.  Rev.  fets.  232.  In  New  York,  it  has 
been  decided,  that  a  conveyance  in  fee  made  by  a  tenant  by  the  curtesy,  though  with  cove- 
nant, passes  only  his  own  interest,  the  extent  of  it  being  proved,  and  the  form  of  the  deed 
such  as  passes  only  a  rightful  estate.  Jackson  v.  Mancius,  2  Wend.  359.  But  in  Maine, 
such  conveyance  has  been  held  to  make  a  forfeiture.  French  v.  Rollins,  8  Shepl.  372. 
Otherwise  by  statute.     Rev.  St.  372. 


70  ESTATE  FOR  LIFE.  [CHAP.  IV. 

of  the  land  which  descends  to  them.  But  in  New  Jersey,  warranty  of 
tenant  by  the  curtesy  shall  not  bind  bis  heirs,  claiming  under  the 
mother.  In  Delaware  and  Alabama,  the  warranty  of  a  tenant  for  life 
is  void  against  the  reversioner,  &c.(l) 

31.  In^^New  Jersey,  if  a  dowress  or  tenant  for  life,  being  sole,  dis- 
continue or  aliene,  or  suffer  any  recovery  by  covin,  the  alienation  shall 
be  void,  but  the  next  owner  may  enter  immediately,  as  if  she  were 
dead.  If  she  aliene  with  her  husband,  the  forfeiture  ceases  with  his 
life.  In  Georgia,  if  a  wife  transfer  her  estate  in  fee  for  life,  she  forfeits 
it.(2) 

32.  In  Ohio,  a  neglect  or  refusal  to  pay  the  taxes  upon  land,  causes 
a  forfeiture  to  the  reversioner  or  remainder-man,  though  the  tenant 
was  a  mere  trustee  for  minors.  The  reversioner,  &c.,  may  redeem 
from  the  purchaser  of  the  land,  but  the  tenant  for  life  cannot.(3) 

33.  In  Kentucky,  Avhere  the  widow  has  an  allowance  in  slaves  in 
the  nature  of  dower,  if  she  actually  or  permissively  remove  a  slave 
from  the  State,  she  forfeits  her  whole  dower.(4) 

34.  The  English  law  o.f  forfeiture  being  modified  or  abrogated  in 
this  country,  as  above  mentioned,  only  a  few  of  the  most  general  prin- 
ciples on  the  subject  will  be  here  stated. 

35.  If  there  be  tenant  for  life,  remainder  for  life,  and  the  tenant  and 
remainder-man  join  in  a  feoffment,  it  is  a  forfeiture  of  both  their 
estates. 

36.  If  husband  and  wife,  tenants  for  life,  make  a  feoffment,  it  is  a 
forfeiture  during  coverture.  So,  where  he  is  seized  in  her  right,  or 
where  he  alone  conveys.     But  the  forfeiture  ceases  with  his  death. 

37.  By  the  English  law,  there  are  some  other  acts  besides  a  con- 
veyance, which,  on  the  same  principle,  cause  the  forfeiture  of  an  estate 
for  life.  Thus,  if  tenant  for  life  levies  a  line,  or  suffers  a  common  re- 
covery, the  reversioner,  &c.,  not  being  a  party,  he  forfeits  his  estate. 

38.  So,  if  being  disseized  he  brings  a  writ,  and  therein  claims  the 
fee.  So,  if  being  sued  in  a  writ  of  right,  he  joins  the  mise  on  the 
mere  right,  which  is  the  privilege  of  the  owner  in  fee. 

39.  So,  if  a  stranger  brings  an  action  of  waste  against  him,  and  he 
pleads  in  bar  "  nul  waste  /a'te;"  this  being  an  admission  that  the  plain- 
tiff is  the  party  entitled  to  sue.  Or,  if  he  is  defaulted  or  pleads  covin- 
ously  in  a  real  action  against  him.(5)(a) 

40.  An  estate  i^^ur  autre  vie,  though  falling  under  the  general  title 
of  life  estates,  and  regarded  as  real  for  many  purposes,  is  a  freehold  in- 
terest sub  modo,  partakes  of  the  nature  of  personal  property,  and  is 
subject  by  law  to  peculiar  modes  of  disposition.  This  estate  has  some- 
times been  called,  though  improperly,  a  descendible  JreeJiold.     The  heir 

(1)  1  N.  C.  Rev.  St.  615;  Miller  v.  Miller,  |      (3)  Chase's  Stat.   2,   13G8-9;    M'Millan  v. 


Meigs,  484;  Aik.  9  ;  Smith  v.  Sliacklefbrd,  9 
Dana,  475  ;  Robinson  v.  Miller,  1  B.  Men.  94; 
1  Ky.  St.  110;  1  N.J.  Rev.  C.  348;  Dela. 
Rev.  Sts.  271;  Vir.  Code,  500. 

(2)  I  N.  J.  Rev.  C.  347-8;  Hotchk.  (Ga.)  436. 


Robbins,  5  Ohio,  30. 

(4)  Anth.   Shep.   649;    King   v.   Mims,   7 
Dana,  272. 

(5)  Co.  Lit.  251  b.;  1  Cruise,  82-3. 


(a)  In  Kentucky,  it  is  said,  a  tenant  for  life  incurs  no  forfeiture,  unless  he  claims  the  fee 
by  some  proceeding  of  record  Robinson  v.  Miller,  1  B.  Monr.  91.  See  Robinson  v.  Miller, 
2  lb.  292.  In  a  late  English  case  it  is  held,  that  no  forfeiture  is  incurred  by  a  verbal  re- 
fusal to  pay  rent  and  claim  of  tho  fee.     Doe  v.  Wells,  10  Ad.  &  El.  427. 


CHAP.  IV.] 


ESTATE  FOR  LIFE. 


71 


does  not  take  hy  descent^  but,  if  at  all,  as  special  occupant.  Lord  ]<]ldou 
said  he  found  it  very  dilVieult  to  determine  under  what  phrase  to  de- 
scribe this  iuterest.(l) 

41.  At  common  law,  where  one  was  tenant  for  the  life  of  another, 
called  the  cestui  que  vie,  and  died,  living  the  latter,  aiiy  person  who 
first  entered  might  bold  the  land,  by  right  of  occupancy,  during  the 
cestuVs  life;  subject,  of  course,  to  the  rent  reserved,  and  other  lia- 
bilities of  the  former  tenant,  but  not  subject  to  his  debts,  for  the  heir 
might  plead  "  riens  per  descent,^''  though,  if  it  came  to  the  executor  or 
administrator,  it  would  be  assets.  So  slight  acts  of  occupancy  would 
create  this  title,  that  it  has  been  thought  necessary  to  decide,  that 
riding  over  the  ground  to  hunt  or  hawk  doth  not  make  an  occupant. 

42.  This  doctrine  led  to  some  singular  results,  where  the  tenant  for 
life  had  leased  the  land.  Thus  A,  tenant  for  the  life  of  B,  leases  to 
C  for  5/.,  and  C  to  D  for  3/.  A  dies,  leaving  D  in  possession.  C 
shall  receive  from  D  the  3/.,  and  D  from  C  the  5?.,  because  D's  term 
is  prevented  from  merging  l3y  the  intermediate  reversion  of  C,  but  D 
has  the  freehold  in  reversion  expectant  on  C's  term,  and  the  rent  in- 
cident to  it.(2) 

43.  St.  29  Chas.  2,  c.  3,  s.  12,  provided,  that  such  estate  might  be 
devised,  and  if  not,  that  it  should  be  assets  by  descent  in  the  hands 
of  the  heir,  if  he  entered  as  special  occupant  ;(a)  or,  if  he  did  not 
enter,  assets  in  the  hands  of  the  executor  or  administrator.  A  sub- 
sequent statute,  (14  Geo.  2,  c.  20,  s.  9,)  provided  for  the  distribution 
of  such  estate  as  personal  property,  in  default  of  any  devise  or  special 
occupancy  .(i) 

44.  These  statutes  have  been  adopted  or  substantially  re-enacted  in 
Maryland, (c)  A^irgiuia,  Kentucky,  North  Carolina  and  Indiana.(3) 

45.  In  Massachusetts  and  Vermont,  such  estate  descends  to  the  heirs, 
unless  devised. (4) 

46.  In  New  York,  New  Jersey,  and  Wisconsin,  it  is  a  chattel  real 
after  the  tenant's  death,  though  freehold  before,  and  in  New  York, 
though  limited  to  heirs.(5) 

47.  In  Ohio  there  is  no  statutory  provision  on  the  subject ;  but  it  is 
said,  the  courts  would  never  recognize  so  absurd  a  doctrine  as  to  allow 


(1)  Doe  V.  Luxton,  6  T.  R.  289;  Brown  v. 
Elton,  3  P.  Wms.  203;  Ripley  v.  Water- 
worth,  7  Ves.  437,  441. 

(2)  Co.  Lit.  41  b.  &  n. ;  Duke,  Ac.  v.  Kin- 
ton,  2  Vern.  719;  Doe  v.  Luxton,  6  T.  R. 
291. 

(3)  4   Kent.  27-S;  Anth.  Shep.  428,  490, 


655;  1   N.  C.  Rev.  St.  278;   Ind.  Rev.  St. 
274 ;  1  Ky.  Rev.  L.  6G9  ;  1  Vir.  R.  C.  167. 

(4)  Mass.  Rev.  St.  413-6  ;  Verm.  Rev.  St. 
292. 

(5)  1  N.  Y.  Rev.  St.  722;  4  Kent;  Wise. 
Rev.  Sts.  314. 


(a)  By  a  special  occupant,  is  to  be  understood  one  who  enters  by  virtue  of  a  limitation  in 
the  instrument  wliicli  created  the  estate.  (But  see  infra  (55)  that  this  is  not  the  sole  use  of 
the  plirase.) 

(6)  A,  the  owner  of  land  in  fee-simple,  conveyed  to  B,  his  heirs  and  assigns,  to  hold  to 
him  and  his  assigns  during  tlie  life  of  C.  B  died,  leaving  C  his  heir.  Held,  C  sliould  hold 
for  life,  as  special  occupant,  the  words  used  in  the  habendum  clause  not  operating  to  vest 
the  estate  in  B's  executors.  Doe  v.  Steele,  4  Ad.  &  Kl.  663.  Demise  to  A,  his  heirs,  &c., 
for  lives.  A  devises  for  tlio  remainder  of  the  term  to  B  and  his  assigns,  who  dies  intestate. 
B.'a  administrator  takes  the  property.     Doe  v.  Lewis,  9  Mees  &  W.  662. 

(c)  Assets  in  the  hands  of  the  executor,  <tc.,  unless  granted  to  the  deceased  and  his  heirs 
only.  Md.  L.  1798,  ch.  101;  Dorsey  Test.  L.  88.  In  Arkansas,  this  estate  is  excepted 
from  the  Statute  of  Descents.     Rev.  St.  331. 


72  ESTATE  FOR  LIFE.  .  [CHAP.  IV. 

a  stranger  to  take  possession  ;  but  this  estate  would  pass  either  to  heirs 
or  executors,  probably  the  latter,(l) 

48.  The  English  and  American  statutes  seem  to  contemplate  chiefly 
the  case  Avhere,  in  general  terms,  an  estate  is  limited  to  one  man  for  the 
life  of  another.  This  estate,  however,  is  often  created  with  special  lim- 
itations ;  in  the  construction  of  which  there  has  been  no  little  contra- 
diction and  confusion. 

49.  If  an  estate  be  limited  to  one  and  his  heirs,  or  the  lieirs  of  his  body, 
for  the  life  of  another,  no  question  can  arise,  because  the  heirs  will 
hold  as  special  occupants,  according  to  the  terms  of  the  grant.(2) 

50.  But  a  life  estate  is  not  entailable,  not  being  an  inheritance  nor 
subject  to  dower. 

51.  Therefore,  in  case  of  an  attempted  entailment,  the  heirs  of  the 
body  or  a  remainder-man  will  take,  only  in  case  the  tenant  has  not 
disposed  of  the  land.  He  has  power  to  grant  it  away  absolutelj^,  after 
fulfilment  of  condition  by  the  birth  of  issue.  It  was  formerly  held  that 
he  could  bar  only  the  issue,  not  a  remainder-man  ;  but  the  rule  seems 
to  be  now  fully  settled  as  above  stated. 

52.  It  has  been  intimated  that  the  tenant  may  even  devise  such  es- 
tate, so  as  to  bar  the  heir.     But  this  is  doubted. (3) 

53.  It  has  been  held,  that  where  the  estate  is  limited  to  executors,, 
administrators  and  assigns,  it  passes,  after  payment  of  debts,  with  the 
personal  estate,  to  residuary  legatees.(4:) 

54.  But  if  limited  to  "  heirs,  executors,"  &c.,  and  not  devised,  the 
heir  takes  as  special  occupant  in  preference  to  the  executor.(5) 

55.  If  a  wife  is  tenant  pour  autre  vie,  the  husband  shall  hold,  after 
her  death,  as  special  occupant.(6)(a) 

56.  An  estate  for  life  terminates  of  course  upon  the  death  of  the 
tenant.(i)  But  such  death  may  sometimes  be  presumed  from  circum- 
stances. The  Gcmmon  law  fixes  no  period  after  which  this  presump- 
tion arises.     But,  by  virtue  of  St.  19,  Cha.  2,  c.  Q,{c)  the  principle  of 

(1)  Walk.  Intro.  275.  i  "Wms.  10,  n.  1 ;   1  Rep.  in  Ireland,  294. 

(2)  1  Cruise,  84;  Anth.  Shep.  428,  (Mary-        (4)  Ripley  v.  Waterworth,*  7  Ves.  425. 
land.)  (5)  Atkinson  v.  Baker,  4  T.  R.  229. 

(3)  Low  V.  Burron,  3  P.  "Wms.  262;  Doe        (6)  2  Kent,  112. 
V.  Luxton,  6  T.  R.  292  ;  Blake  v.  Blake,  3  P.  I 

*  This  case  contains  the  fullest  exposition,  to  be  found  in  the  books,  of  an  estate  ;poMr 
autre  vie  at  common  law,  and  as  affected  by  the  statutes  above  named.  It  was  here  con- 
tended, under  the  particular  form  of  limitation,  on  the  one  hand,  that  the  estate  went  to  the 
heir,  not  being  validly  disposed  of  by  an  unattested  will ;  and,  on  the  other,  that  the  execu- 
tors took  it  in  trust  for  the  legatees.  Tlie  court  remarked,  that  they  should  sooner  give  it 
to  the  executor  for  his  own  benefit,  than  to  the  heir. 

(a)  A  liusband  entered  on  land  as  tenant  pour  autre  vie  of  his  wife,  leased  it,  and  died. 
Held,  the  lessee  and  his  tenant  must  attorn  to  the  title  under  which  the  husband  entered, 
not  to  his  heirs.     Syme  v.  Sanders,  4  Strobh.  341. 

(6)  Hence,  one  entering  upon  land,  under  an  agreement  with  the  husband  of  a  tenant  for 
life,  and  holding  over  after  her  dpath,  is,  with  respect  to  the  remainder-man,  a  mere  tres- 
passer.    Williams  v.  Caston,  1  Strobhart,  130. 

(c)  This  act  provides,  that  if  the  persons  for  whose  lives  estates  are  granted,  shall  go 
abroad,  and  no  sufficient  proof  bo  made  that  they  are  alive;  in  any  actions  for  the  lands  by 
the  lessors  or  reversioners,  the  judge  shall  direct  the  jury  to  give  their  verdict,  as  if  the 
absent  persons  were  dead.  Holman  v.  Exton,  Carth.  246;  Stat.  G  Anne,  ch.  18:  2  Cox, 
373.  In  Arkansas,  absence  from  the  state  ^ye  years  raises  a  presumption  of  death.  If  the 
party  return,  he  may  recover  the  intermediate  profits  of  the  land.     Ark.  Rev.  St.  321-2, 


CHAP.  IV.] 


ESTATE  FOR  LIFE. 


73 


wliicli,  tliougli  not  the  act  itself,  is  generally  adopted  in  this  country,  a 
continued  absence  for  seven  years  raises  a  presumption  of  death,  which 
authorizes  the  next  succeeding  owner  to  enter  upon  the  estate.  But  if 
the  tenant  for  life  prove  to  be  still  living,  he  shall  recover'  the  land 
with  the  intermediate  rents  and  [jrofits.  Absence  for  a  less  period  than 
seven  years  docs  not  raise  a  presumption  of  death.  The  absence  is  an 
absence  from  the  State  or  Commonwealth.  Thus,  the  rule  was  applied 
in  a  case  where  a  husband  emigrated  from  South  Carolina  to  the  west- 
ern country. (1) 

57.  AVhere  a  husband,  twelve  years  before,  sailed  for  South  America, 
and  neither  he,  nor  any  of  the  crew,  nor  the  vessel,  were  ever  heard  of 
afterwards,  it  was  held,  in  analogy  to  the  statutes  relating  to  bigamy, 
and  to  leases  determinable  on  lives,  that  the  death  of  the  husband  must 
be  presumed,  and  the  wife  treated  as  a  feme  sole.{2) 

58.  The  brother  of  A,  a  person  deceased,  left  Oldenburg  more  than 
thirty-five  years  ago.  He  went  to  Ilamburg  and  shipped  as  a  sailor 
for  Lisbon,  and  had  never  been  beard  of  since.  Held,  the  administra- 
tor of  A  should  distribute  his  property  as  if  the  brother  were  proved 
to  be  dead. (3) 

58  a.  A  father,  seventy  years  old,  and  his  daughter,  thirty-three  years 
old,  were  on  board  a  steamboat,  lost  at  sea,  and  both  perished,  there 
being  nothing  to  show  which  survived  the  other.  Held,  they  must  be 
presumed  to  have  died  at  the  same  instant.(4) 

58  b.  Presumption  of  death  does  not  arise  from  the  fact,  that  a  person 
who,  twenty-two  years  ago,  was  in  "bad  health,"  would,  if  now  living, 
be  eighty  j'ears  old ;  even  although,  on  recent  inquiry,  his  name  was 
not  known  at  the  post  office  of  a  large  city,  (his  former  residence,)  nor 
inserted  in  its  directory,  there  being  no  evidence  of  the  sort  or  degree 
of  bad  health,  nor  of  inquiries  having  been  made  about  him  among 
his  friends,  nor  of  his  having  ever  left  the  place  of  his  former  resi- 
denee.(5) 

58  (V  What  is  a  reasonable  search  and  inquiry  for  the  person  upon 
whose  life  the  continuance  of  a  leasehold  estate  depends,  is  a  mixed 
question  of  law  and  fact,  to  be  determined  upon  the  particular  circum- 
stances of  each  case.  Inquiry  of  the  tenant  may  in  some  cases,  it  seems, 
be  sufficient.(6) 

58  d.  In  a  suit  in  equity  by  certain  heirs  of  a  person,  having  an 
equitable  interest  in  an  estate,  against  the  executor  of  the  person  who 
held  the  legal  title,  and  who  had,  in  his  lifetime,  conveyed  the  estate 
to  bona  jjde  purchasers  without  notice,  one  of  the  heirs  not  having  been 
heard  of  for  seventeen  years,  and  being  an  infant  when  last  heard  of; 


(1)  Woods  V. "Woods,  2  Bay,  476;  Spurr  v. 
Trimble.  1  Mar.  278  ;  Salle  v.  Primm,  3  Misso. 
629;  Newman  v.  Jenkins,  10  Pick.  515; 
Miller  v.  Beates,  3  S.  &  K.  400 ;  Forsaitli  v. 
Clark,  1  Fost.  (N".  II.)  409;  Taylor,  3  Harr. 
Dig.  (suppl.)  715. 


(2)  King  v.  Paddock,  18  John.  141. 

(3)  Loring  v.  Steineman.  1  Met.  204. 

(4)  Coy  V.  Leach,  8  Met'.  371. 

(5)  Matter  of  Hall,  "Wallace,  Jr.  85. 

(6)  Clarke  v.  Cummlngs,  5  Barb.  339. 


536.  In  England,  by  a  late  act,  (3  &  4  "Wm.  4,  ch.  74,  s.  91,)  after  a  certain  absence  of  the 
husband,  the  wife  may  be  empowered,  by  order  of  court,  to  convey  lands.  But  this  can  be 
done  only  upon  her  affidavit  that  she  has  had  no  communication  with  him.  Anne,  ic,  3 
Man.  &  G-.  132.  In  New  Jersey,  an  heir  or  devisee  may  receive  the  eamo  authority.  St. 
1848,  43. 


74 


ESTATE  TAIL  AFTER  POSSIBILITY  OP  ISSUP,  &C.        [CHAP.  V. 


the  share  of  such  absent  heir  was  divided  among  the  other  heirs,  upon 
their  executing  bonds,  payable  to  the  judge  and  his  successors  in  office, 
with  condition  to  indemnify  the  executor  against  the  claim  of  the  ab- 
sent heir,(l) 

59.  Under  special  circumstances,  the  death  of  a  party  may  be  pre- 
sumed to  have  occurred,  at  some  particular  part  of  the  time  of  seven 
years,  during  which  he  was  absent ;  as  where  one  sailed  from  Demerara 
during  the  hurricane  months.  But  in  general  no  such  presumption 
arises,  but  the  time  must  be  affirmatively  proved. (2) 


CHAPTER  V. 

ESTATE  TAIL  AFTER  POSSIBILITY  OF  ISSUE  EXTINCT. 


1.  Life  estates  created  by  law. 

2.  Estate  tail  after  possibility,  &c. 


3.  "When  it  arises. 

8.  Qualities  of  the  estate. 


1.  Having  treated  of  estates  for  life  created  by  act  of  party ^  we  are 
now  to  consider  those  created  by  act  of  law. 

2.  Of  these,  the  first  in  the  English  law,  is  called  estate  tail  after  pos- 
sibility of  issue  extinct.  This  is  of  little  consequence  in  the  United 
States,  and  will  be  very  briefly  noticed. 

3.  Where  tenements  are  given  to  a  man  and  his  wife  in  special  tail, 
and  one  of  them  dies  without  issue,  or  wliere  they  have  issue,  who  die 
without  issue,  the  surviving  man  or  woman  is  tenant  in  tail  after  pos- 
sibility of  issue  extinct,  because  he  can  no  longer  have  issue  capable  of 
inheriting  the  estate. 

4.  So  where  tenements  are  given  to  a  man,  and  to  his  heirs  which  he 
shall  beget  on  the  body  of  his  wife ;  if  she  die  without  issue  by  him, 
he  is  tenant  in  tail  after,  &c. 

5.  No  one  can  have  the  above-described  estate  except  a  donee  in 
special  tail,  because  both  a  tenant  in  tail  general,  and  the  issue  of  tenant 
in  tail  special,  may  always,  by  legal  possibility,  during  their  life,  have 
issue  capable  of  inheriting.(3) 

6.  This  estate  cannot  arise  without  a  moral  impossibilitj-,  caused  by 
act  of  God,  of  having  issue.  Thus,  a  man  and  woman  will  remain 
tenants  in  special  tail,  though  they  live  to  be  more  than  a  hundred  years 
old.  So,  if  a  man  and  woman,  tenants  in  tail  special,  are  divorced, 
causa  prcecontr actus  or  consanguinitatis^  the  separation  not  being  by  act 
of  God,  they  become  mere  joint  tenants  for  life.(4) 

7.  This  tenancy  may  exist  in  a  remainder.(5) 

8.  In  some  particulars,  the  estate  above  described  resembles  an  estate 
tail ;  in  others,  an  ordinary  estate  for  life.  The  tenant  is  a  tenant  for 
life,  but  with  many  of  the  privileges  of  a  tenant  in  tail ;  or  a  tenant  in 
tail,  but  with  many  of  the  restrictions  of  a  tenant  for  life.     Thus,  such 


(1)  Norman  v.  Cunningham,  5  Gratt.  63. 

(2)  Sillick  V.  Booth,!  Y.  &  Coll.  Cha.  117  ; 
Spencer  v.  Roper,  13  Ired.  333. 


(3)  Lit.  ss.  32,  33,  34. 

(4)  1  Inst.  28  a. 

(5)  Bowles'  case,  11  Rep.  81  a. 


CHAP.  VI.]  CURTESY.  75 

tenant  is  dispuui.?hablc  for  waste,  the  law  not  divesting  him  of  a  power 
which  he  once  possessed.  But  whether  he  acquires  a  property  in  the 
timber  cut  by  him,  seems  to  be  a  point  somewhat  unsettled.  But,  on 
the  other  hand,  by  a  feolfment,  he  forfeits  his  estate ;  anci^ii'  he  acquire 
a  fee,  simple  or  qualified,  by  descent,  in  the  same  land,  his  former  in- 
terest is  merged. 

9.  If  tenant  in  tail  after  j:)ossibility,  &e.,  grant  over  his  estate,  the 
grantee  is  a  mere  tenant  for  life,  with  none  of  the  peculiar  privileges 
of  the  former.(l) 


CHAPTER   VI. 

CURTESY. 


1.  Orifjin  of  tho  name. 

2.  Detiiiition  of  the  estate. 

3.  Curtesy  in  the  United  States. 

4.  Requisites. 

5.  Marriage. 

6.  Seizin. 

i;5.  Birth  of  issue. 

20.  Aliens. 


22.  Conditional  fees,  Sec. 

25.  Money  to  be  converted  into  land. 

27.  Land  converted  into  money. 

29.  "Wife  must  have  the  inheritance. 

35.  Wild  land.s. 

36.  Entry  not  necessary. 

37.  How  barred. 

43.  Elfect  of  contract  upon  curtesy. 


1.  The  second  estate  for  life,  created  by  act  of  law,  is  a  tenancy  by 
the  curtesy.  This  name  has  been  variously  accounted  for,  upon  the 
grounds  that  the  estate  is  peculiar  to  England,  that  the  tenant  was  en- 
titled to  attend  upon  the  lord's  court,  and  that  it  has  no  moral  founda- 
tion. In  the  time  of  Glanville  an  estate  existed,  somewhat  resembling 
curtesy,  being  the  interest  of  a  husband  in  lands  given  with  the  wife 
in  marriugehoocl.  The  birth  of  issue  gave  him  a  life  estate  in  the 
lands.(a)  From  this  interest,  curtesy  seems  to  have  been  derived. 
By  the  custom  of  Normandy,  the  hustjand  held  only  during  his  widow- 
hood.{2) 

2.  Where  a  wife  is  seized  of  lands  in  fee-simple  or  fee  tail  general, 
or  as  heir  in  tail  special,  and  the  husband  and  wife  have  issue  born 
alive,  after  the  wife's  death  the  husband  shall  hold  the  lands  for  his 
life,  and  this  estate  is  a  tenancy  by  the  curtesy.(3)(i) 

3.  Curtesy  exists  in  most  of  the  States  as  at  common  law,  being 


(1)  1  Cruise,  103-6,  14;  2  Chit.  Black.  98 
and  n.  6. 

(2)  ]  Cruise,  106-7;  2   Black.  Com.  100; 
Glanville  Tr.  193  ;  Bracton,  lib.  5,  c.  30,  s.  7  ; 


Hale's  His.  of  C.  L.  1,  219. 

(3)  Lit.  s.  35;  Mass.  Rev.  Sla.  411  ;  Hela. 
Rev.  Sts.  277. 


(a)  A  tenant  by  the  curtesy  initiate,  ia  said  to  have  a  life  estate  in  his  own  right.  Foster 
j;.  Mar-shall,  34  Maine,  491. 

(b)  This  estate  has  been  termed  custodiam  hareditatis  uxoris.  Co.  Lit.  30  a,  n.  5.  It  is 
a  kgal  estate,  not  a  mere  charge  or  incumbrance,  and  said  to  be  rather  a  title  by  descent  than 
by  purchase.     "Watson  v.  "Watson,  13  Conn.  83. 

It  may  be  sold  by  the  husband.  "Wells  v.  Thompson,  13  Ala.  793.  His  deed  of  bargain 
and  sale  will  pa.'is  only  his  title;  and  tho  statute  of  limitations  will  not  begin  to  run 
against  the  heirs  of  the  wife  till  his  death.     Meraman  v.  Caldwell,  8  B.  Mon.  32. 


76 


CURTESY. 


[CHAP.  VI. 


generally  noticed  iu  the  statutes,  if  at  all,  merely  by  a  recognition  of 
the  common  law  rule.  In  a  few  of  the  States,  the  estate  is  abolished  or 
greatly  modified.  In  Indiana  it  is  abolished.  In  Georgia,  it  is  pro- 
vided, both  that  a  husband  shall  be  heir  to  his  wife,  and  also  that  the 
real  estate  of  the  wife  shall,  like  her  personal  estate,  vest  absolutely 
in  the  husband  upon  the  marriage.  Of  course,  curtesy  is  unknown. 
In  Indiana,  the  husband  inherits  to  his  wife.  In  South  Carolina,  the 
husband  takes  the  same  interest  in  the  wife's  lands  upon  her  death, 
that  she  would  take  in  his  lauds  upon  his  death.  In  Vermont,  it 
seems,  the  husband  formerly  had  curtesy  in  a  fee-simple,  only  where 
the  issue  had  died  under  age  and  without  children :  but  now,  curtesy 
is  as  at  common  law  ;  with  the  exception,  that  if  the  wife  leaves  issue  by 
a  former  husband,  curtesy  does  not  attach  to  such  lands  as  descend  to 
them.(l)(a) 

4.  Four  circumstances  are  necessary  to  the  existence  of  this  estate ; 
viz.,  marriage^  seizin  of  the  tvife^  issue  and  death  of  the  wife.  And  it  is 
wholly  immaterial  in  what  order  these  events  occur,  provided  they  all 
at  some  time  take  place.  Thus,  if  the  wife  is  disseized  after  marriage 
but  before  the  birth  of  issue ;  or  if  the  lands  come  to  her  after  the 
death  of  the  issue  ;  the  husband  still  has  curtesy.(2) 

5.  A  void  marriage  gives  no  right  to  curtesy.  It  is  otherwise  with 
a  marriage  merely  voidable^  and  not  actually  avoided  during  the  wife's 
life — because  it  cannot  be  avoided  afterwards.(o)(i) 

6.  It  is  the  general  rule,  that  the  wife,  or  tlie  husband  in  her  right, 
must  have  been  seized  o1  the  lands.  It  is  said,  the  husband  is  bound  to 
strengthen  the  title  of  the  wife  by  possession,  so  as  to  protect  the  lands 
against  adverse  claims.  Of  corporeal  hereditaments  there  must  be  a 
seizin  in  deed.  Thus,  if  lands  descend  to  a  woman,  who  afterwards 
marries  aud  has  issue,  but  dies  before  entry,  the  husband  shall  not 
have  curtesy.  So,  where  persons  claiming  adverse  title  were  in 
possession. (4) 

7.  This  rule  has  been  changed  in  Connecticut,  Pennsylvania  and 
Tennessee;  and  a  right  to  seizin  or  potential  seizin^  merely,  there  being 
no  adverse   possession,  and   whether   such  seizin  were   acquired  by 


(1)  Prince's  Dicv.  225,  251 ;  S.  C.  Sts.  1791  ; 
1  Vt.  L.  142;  Me.  Rev.  Sts.  381 ;  M'Corry  v. 
King,  3  Humph.  267  ;  Verm.  L.  359 ;  Verm. 
Rev.  Sts.  291.  See  Cunningham  v.  Doe,  1 
Cart.  94;  Burnsides  v.  Wall,  9  B.  Mon. 
318. 

(2)  1  Cruise,  107;  Co.  Lit.  30  a;  Paine's 


Case,  8  Rep.  35  b;  Menville's  Case,  13  Rep. 
23  ;  Jackson  v.  Johnson,  5  Cow.  74. 

(3)  1  Cruise,  107. 

(4)  Co.  Lit.  29  a ;  Mercer  v.  Selden,  1  How. 
37  ;  Adair  v.  Lott,  3  Hill,  182  ;  Orr  v.  HoUi- 
days,  9  B.  Mon.  59;  Neelj  v.  Butler,  11  B. 
Mon.  48. 


(a)  In  Pennsylvania,  it  is  said,  the  husband's  curtesy,  by  statute  in  1833,  is  good,  though 
there  be  no  issue  of  the  marriage.  4  Kent,  29  n.  So  in  Wisconsin.  (Rev.  Sts.  336.) 
In  the  same  State,  if  the  wife  leave  issue  by  a  former  husband,  who  may  inherit  from  her, 
there  shall  be  no  curtesy.  lb. 

A  statute  (1838)  provided,  that  on  the  death  of  a  feme  covert  intestate,  her  husband 
should  have  one-third  of  her  estate  in  fee,  and  be  tenant  by  the  curtesy,  as  at  common 
law  of  the  residue.  Held,  this  statute  did  not  change  the  common  law  right  as  to  the 
two-thirds;  and  where  no  ciiildren  have  been  borii  alive  of  the  wife,  he  takes  no  estate 
therein.     Cunningham  v.  Doe,  1  Smith,  34. 

(&)  See  infra,  ch.  8,  Dower. 


CHAP.  VI.] 


CURTESY. 


77 


descent,  devise  or  conveyance,  is  there  snfiicient  to  give  curtesy.(a) 
And  the  rule  has  been  held  not  ap])licable  to  wild  ]ands,(6)  whether 
claimed  by  inheritance,  deed  or  devise,  of  which  the  mejji  o\>^nership 
is,  in  general,  equivalent  to  actual  possession,  unless  they  are  held  ad- 
versel}'  to  the  wile.  Nor  to  incorporeal  hereditaments,  where  no  actual 
seizin  is  possible.  Thus,  where  a  wife  seized  of  a  rent  dies  before 
it  falls  due,  the  husband  shall  have  curtesy.  "  Lnjwtenlia  excusat 
legem.^\V) 

8.  In  New  York,  the  husband  of  a  woman  who  is  either  heir  or 
devisee,  but  has  never  entered,  shall  not  have  curtesy.  It  is  said,  the 
requisition  of  actual  seizin  is  limited  to  these  two  cases,  and  is  not  ap- 
plicable where  the  wife  claims  under  a  deed  ;  which,  by  the  statute  of 
uses,  transfers  actual  seizin,  without  entry.  So,  if  husband  and 
wife  recover  her  lands  by  suit,  this  is  a  sufficient  seizin  for  curtesy. 
So,  with  a  decree  for  partition.  In  Pennsylvania,  the  husband  shall 
not  have  curtesy,  where  the  wife  has  a  mere  naked  seizin  as  trustee 
of  the  freehold,  though  she  also  holds  a  beneficial  interest  in  the 
re  version. (2) 

9.  If  the  lands  are  leased  for  years  when  they  descend  upt)n  the 
wife,  the  possession  of  the  lessee  is  equivalent  to  actual  seizin  of  the 
husband  and  wife,  and  he  shall  have  curtesy,  although  she  die  before 
receiving  any  rent,  and  although  the  rent  before  her  death  was  greatly 
in  arrear.  It  might  be  otherwise,  if  the  rent  were  paid  to  any  other 
claimant.(3) 

10.  A  woman,  before  marriage,  grants  a  term  for  seventy-five  years, 


(1)  Guion  V.  Anderson,  8  Ilumpli.  298  ; 
Bush  r.  Bradley,  4  Day,  298;  Jackson  v. 
Selliek,  8  Joliii.  262 ;  Davia  v.  Mason,  1  Pet. 
503  ;  Smoot  v.  Lecatt,  1  Slew.  590;  Kline  v. 
Bebee,  G  Conn.  49 -t ;  lillsworlli  v.  Cook,  8 
Paige,  G43  ;  B:irr  v.  Galloway,  1  M'Lean, 
576;  Co.  Lit.  28  a;  Wells  v.  Thompson,  13 


Ala.  793. 

(2)  Jackson  v.  Johnson,  5  Cow.  74;  lb.  98; 
Adair  v.  Lott,  3  Hill,  82 ;  Ellsworth  v.  Cook, 
8  Paige,  643  ;  Chew  v.  Coramrs.,  &c.,  5  Rawle, 
160. 

(3)  De  Gray  v.  Richardson,  3  Atk.  469; 
Carter  ti.  Williams,  8  Ired.  Equ.  177. 


(n)  On  the  ground,  in  Connecticut,  that  in  all  other  respects,  in  that  State,  ownership  is 
held  equivalent  to  actual  seizin.  Thus,  lands  descend  from,  or  may  be  devised  by,  the 
owner,  though  not  seized.  So,  he  may  maintain  trespass.  (Two  justices  di.«sented.)  To 
have  curtesy,  adverse  possession  must  have  existed  through  the  whole  period  of  marriage. 
Parker  v.  Carter,  4  Hare,  400. 

(b)  Johnson,  J.,  remarks:  "  It  would  indeed  be  idle,  to  compel  an  heir  or  purchaser  to 
find  his  way  through  pathless  deserts  into  lands  still  overrun  by  the  aborigines,  in  order  to 
break  a  twig,  or  turn  a  sod,  or  read  a  deed,  before  he  could  acquire  a  legal  freehold.  It 
may  be  very  salely  asserted,  that  had  a  similar  state  of  things  existed  in  England  when 
the  Conqueror  introduced  this  tenure,  the  necessity  of  actual  seizin  would  never  have  found 
its  way  across  the  channel."  1  Pet  507.  In  Maine,  curtesy  is  allowed  in  lands  under 
improvement.  Revised  Stat.  393.  If  the  owner  of  wild  and  unoccupied  land  dies  intes- 
tate, the  husband  of  one  of  the  heirs  is  to  bo  regarded  as  in  possession  as  tenant  bj'  the 
curtesy,  though  he  slates  that  he  never  owned  the  premises,  nor  ever  went  through  the 
ceremony  of  putting  his  foot  upon  the  land.  Pierce  v.  Wannett,  10  Ired.  446.  In  Ken- 
tucky, tiiore  is  no  curtesy  in  wild  land,  where  mMther  husband  nor  wife  has  had  actual  pos- 
session, althougli  he  has  paid  the  taxes  ever  since  the  marriage,  and  tiiere  has  been  no  ad- 
verse claim.     Noel}'  v.  Bviiler,  10  B.  Mon.  43. 

A  husband,  in  right  of  his  wife,  became  a  partner  in  the  ownership  of  a  cotton  factory 
and  other  mills,  and  the  management  of  the  business  thereof,  and  received  a  proportionate 
share  of  the  profits  from  the  time  she  became  interested  in  them  till  after  herdcaiii  Held, 
there  was  a  sufBc'ient  seizin  to  give  the  husband  curtesy.     Buckley  f.  Buckley,  1 1  Barb.  43. 

Possession  of  an  immediate  or  remote  vendee  of  the  husband  is  suCQcient  to  give  him 
curtesy.     Vanarsdall  v.  Fauutleroy,  7  B.  Mon.  401. 


78 


CURTESY. 


[CHAP.  VI 


to  a  trustee,  in  trust  for  her  use  daring  coverture.     The  husband  has 
curtesy. (1) 

11.  So,  where  lauds  descend  to  a  woman  subject  to  a  devise  to  exe- 
cutors for  payment  of  debts,  and  until  the  debts  are  paid ;  although 
the  executors  enter  and  the  wife  dies  before  the  debts  are  paid,  the  hus- 
band still  shall  have  curtesy.(2) 

12.  At  common  law,  where  lands  come  to  a  woman  subject  to  a  life 
estate,  she  has  no  seizin,  and  therefore  there  shall  be  no  curtesy. 
Whether  there  shall  be  curtesy  in  the  rent  reserved,  if  any,  seems 
doubtful.     In  equity,  reversions  are  subject  to  curtesy .(8)(a) 

12  a.  The  same  principle  of  estoppel^  which  precludes  the  tenant  in  an 
action  for  doioer  from  denying  the  seizin  of  the  husband,  {infra,  ch.  8/) 
applies  to  tenant  by  the  curtesy. 

12  b.  A  feme  sole  claimed  land  under  a  location  by  the  proprietors. 
Having  intermarried  with  A,  he  entered  under  the  location,  and  after 
her  death  retained  possession  as  tenant  by  the  curtesy.  Her  heirs  con- 
veyed to  B,  who  brings  an  action  of  waste  against  A.  Held,  A  was 
estopped  to  allege  a  defective  location.(4)(i) 

15.  Another  requisite  to  curtesy,  is  the  birth  of  issue ;  after  which,  the 
husband  is  called  tenant  by  the  curtesy  initiate.{c) 

14.  The  issue  must  be  born  alive.  It  was  formerly  held,  that  the  only 
admissible  proof  of  this  fact  was  its  being  heard  to  cry  \{d)  and  that 
this  proof  must  come  from  men,  not  from  women.  But  other  evidence 
has  been  since  held  sufficient,  even  as  early  as  the  reign  of  Henry  8 ; 
"  for  peradventure  it  may  be  born  dumb."(5) 

15.  The  issue  must  also  be  born  during  the  mother's  life.  If  she  die 
in  childbirth,  and  the  child  be  taken  away  by  the  Goisarean  operation, 
at  the  death  of  the  wife  the  husband  has  no  title,  the  issue  not  being 
born,  but  the  estate  descends  to  the  child  in  the  womb,  and  shall  not 
afterwards  be  divested  from  it  in  favor  of  the  husband.  Curtesy  ought 
to  begin  by  the  birth  of  the  issue,  and  be  consummated  by  the  death  of 
the  wife.(6) 

16.  The  issue  must  be  such  as  can  inherit  the  estate.     Therefore,  if 


(1)  Lowry  v.  Steele,  4  Ohio,  171. 

(2)  1  Cruise,  108  (cites  Guavara's  ease,  8 
Rep.  9G  a) ;  Robertson  v.  Stevens,  1  Ired. 
Equ.  247  ;  M'Corry  v.  King,  3  Humpb.  267. 

(3)  Co.  Lit.  29  a  &  n.  7  ;  1  Cruise,  108-9 ; 
Gentry  v.  Wagstaff,  3  Dev.  270;  Stoddard  v. 
Gibbs,  1  Sumu.  203;  Tayloe  v.  Gould,  10 
Barb.  388  ;   Mackey  v.  Proctor,  12  B.  Mon. 


433  ;  Carter  v.  Williams,  8  Ired.  Equ.  177. 

(4)  Morgan  v.  Lamed,  10  Met.  50. 

(5;  Co.  Lit.  30  a,  67  a,  29  b  &  n.  5 ;  Brae. 
438  a ;  Paine's  ease,  8  Rep.  34  b ;  Dyer,  25 
b ;  Benl.  Rep.  25  ;  2  Bl.  Com.  101. 

(6)  Co.  Lit.  29  b;  8  Rep.  35  a;  Marsellis 
V.  Thalhimer,  2  Paiae,  35. 


(a)  Where  an  intervening  life  estate  is  merely  equitnhle,  it  is  no  bar  to  curtesy.  Adair  v. 
Lott,  3  Hill,  182. 

{b)  A  party  may  also  be  estopped,  by  his  own  acts,  from  claiming  curtesy.  Thus,  where 
a  person  petitioned  a  commission,  under  the  act  of  Congress  of  1803,  for  a  confirmation  of 
a  British  grant,  and  represented  himself  as  "the  only  surviving  heir  and  legal  representa- 
tive" of  the  grantee;  such  petitioner  is  estopped  Irom  claiming  as  tenant  by  the  curtesy. 
Montgomery  v.  Ives,  13  S.  &  .\L  161. 

(c)  Anciently,  this  gave  him  the  right  to  do  homage,  alone.  Co.  Lit.  30  a,  67  a.  See 
Mattocks  V.  Stearns,  9  Verm.  326 ;  Oldham  v.  Henderson,  5  Dana,  256. 

(d)  Til  is  is  one  of  many  instances  of  the  extreme  jealousy  exhibited  by  the  ancient  law 
to  guard"  the  rights  of  the  hei7:  See  8  Rep.  34.  Bracton  says,  though  tlie  child  were  called, 
baptized  and  buried  as  a  Christian,  this  would  be  insufBcient  to  give  curtesy.  In  Scotland, 
it  is  said,  the  old  rule  still  prevails.     Dyer,  25  b,  n.  2. 


CHAP.  YI.] 


CURTESY. 


79 


lands  are  given  to  the  wife  and  the  heirs  male  of  her  hod}',  and  she  has 
issue  a  daughter  only,  the  husband  shall  not  liave  eurtesy.(l)  . 

17.  JJutamerepossibilit}^  of  inheriting  is  suflieient.  Th"Us,  if  a  woman 
has  issue  by  a  first  husband,  and  afterwards  issue  by  a  second  husband, 
and  both  issue  be  dead  ;  inasmuch  as  the  latter  issue  might  by  possi- 
bility inherit,  the  second  husband  is  tenant  by  the  curtesy, (2) 

18.  The  last-named  requisite  is  of  course  intimately  connected  with 
that  of  the  wife's  actual  seizin,  which  has  been  before  considered  ;  be- 
cause, unless  actually  seized,  her  issue  cannot  inherit  the  estate  from 
hcr.(3) 

19.  The  last  requisite,  is  the  death  of  the  wife,  by  which  the  husband's 
estate  becomes  consuramate.{-^){a) 

20.  By  the  English  law,  an  alien  cannot  be  tenant  by  the  curtesy, 
because  this  is  an  estate  created  by  act  of  law,  and  the  law  never  casts 
an  estate  upon  a  person,  which  is  liable  to  be  immediately  divested. 
It  will  be  seen  hereafter,  (see  Bower  Alien,)  that  in  many  of  the 
States  the  common  law  rule  upon  this  subject  has  been  abolished,  and, 
in  some  of  them,  where  it  still,  for  the  most  part,  remains  unchanged,  a 
special  exception  has  been  made  in  favor  of  dower.  The  particular 
case  of  tenant  by  the  curtesy  seems  to  have  been  generally,  if  not  wholly, 
omitted  in  the  statutory  provisions.(5) 

21.  It  has  already  been  stated,  generally,  in  what  lands  a  hus- 
band shall  have  curtesy.  A  few  particular  illustrations  will  here  be 
added. 

22.  Both  conditional  fees  and  estate  tail  are  subject  to  curtesy,  even 
notwithstanding  an  express  proviso  or  condition  to  the  contrar3^  And, 
in  both  cases,  though  the  estate  of  the  wife  comes  to  an  end  by  her 
own  death,  and  that  of  her  issue,  the  husband  shall  still  have  his  curtesy 
as  against  the  reversioner  or  remainder-man.  This  rule  proceeds  upon 
the  grounds,  that  the  incident  of  curtesy  is  a  privilege  impliedly  an- 
nexed to  the  creation  of  the  estate,  and  not  derived  merely  from  the 
interest  of  the  wife ;  and  that  by  the  birth  of  issue  the  husband 
gains  an  initiate  title,  which  cannot  afterwards  be  divested  by  act  of 
God.(5) 

23.  Devise  to  a  woman  in  fee,  with  a  devise  over,  if  she  die  under 
age,  without  issue.    The  woman  marries,  has  issue  which  dies,  and  dies 


(1)  Co.  Lit.  29  b ;  8  Rep.  35  b. 

(2)  8  Rep.  34  b;   Pre3.  on  Est.  516. 

(3)  Co.  Lit.  40  a;   1  Cruise,  110. 

(4)  1  Cruise,  110. 


(5)  1  Cruise,  112;  (Paine's  case,  8  Rep. 
34;)  Co.  Lit.  30  a;  See  Paine  v.  Paine,  11  B. 
Mon.  138. 


(a)  See  Presumption  of  Death,  c.  4. 

(6)  In  England,  if  an  alien  be  made  a  deniicen,  and  afterwards  have  issue,  he  may  bo 
tenant  by  the  curtesy  in  respect  of  such  i.ssue;  though  ho  would  not  be  entitled  on  account 
of  previous  issue.  la  Massachusetts,  if  an  alien  makes  the  preliminary  declaration  of  Lis 
intention  to  be  naturalized  before  the  death  of  his  wife,  and  completes  his  naturalization 
after  her  death,  he  is  not  entitled  to  curtesy.  Foss  v.  Cri.sp,  20  Pick.  121.  In  Penn.sylva- 
nia,  an  alien  can  gain  no  title  to  real  estate  as  tenant  by  the  curtesy  initiate.  Reese  v. 
Waters,  4  W.  &  Ser>,'.  145.  "Wliero  there  were  several  plaintiffs  in  ejectment,  one  of  whom 
was  a  married  woman,  and  her  husband  an  alien;  hold,  the  action  would  lie.  Doe  i'.  Ro- 
gers, 1  Carr.  &  K.  390. 


30  CURTESY.  [CHAP.  YI. 

herself,  under  age.     This  is  a  contingent  limitation,  not  a  conditional 
limitation,  and  the  husband  shall  have  curtesy. (1) 

24.  As  a  general  rule,  however,  cessanie  statu  j^rimitivo,  cessat  derivati- 
vus;  and  the  case  above  mentioned  is  to  be  regarded  as  an  exception  from 
this  principle.  With  regard  to  curtesy  as  well  as  dower,  if  the  primi- 
tive estate  terminates  by  force  of  a  condition^  instead  of  a  limitation^  the 
derivative  interest  is  also  defeated.  The  distinction  is,  that  by  a  con- 
dition the  old  paramount  title  is  re-assumed ;  while  a  limitation  merely 
shifts  the  estate  from  one  person  to  another.(2)  In  other  words,  where 
the  fee  in  its  original  creation  is  only  to  continue  to  a  certain  period, 
the  husband  or  wife  shall  have  curtesy  or  dower  after  the  expiration  of 
such  period ;  but  where  the  estate  is  first  given  in  fee  or  in  tail,  and  by 
subsequent  words  made  determinable  upon  a  certain  event,  if  that  event 
happen,  the  curtesy  or  dower  ceases.(3) 

25.  In  equity,  there  shall  be  curtesy  in  money  directed  or  agreed  to 
be  laid  out  in  land.(a) 

26.  Devise  of  £800  to  the  testator's  daughter  A,  to  be  laid  out  by 
the  executrix  in  land,  and  settled  to  the  use  of  A  and  her  children. 
If  she  died  without  issue,  the  lands  to  be  equally  divided  between  her 
brothers  and  sisters.  The  money  not  having  been  applied  as  directed, 
the  plaintiff',  being  the  husband  of  A,  brings  a  bill  in  equity,  praying 
that  the  land  might  be  purchased  and  settled  on  him  for  life  as  tenant 
by  the  curiesj^,  or  the  interest  paid  to  him  for  life.  Held,  inasmuch  as 
A  would  have  been  tenant  in  tail  of  the  land,  the  plaintiff",  as  tenant 
by  the  curtesy,  should  have  the  interest  for  life.(-i) 

"27.  So,  at  law,  where  the  land  of  one  deceased  is  sold  for  payment  of 
debts,  the  husband  of  a  devisee,  who  takes  subject  to  such  sale,  shall 
have  curtesy  in  the  proceeds. 

28.  A  testator,  whose  personal  estate  was  insufficient  for  payment  of 
debts,  devises  the  residue  of  his  estate  after  such  payment  to  his  daugh- 
ters ;  if  the  residue  exceed  $1,000  in  value  to  each,  the  overplus  to  be 
divided,  &c.  The  estate,  consisting  of  wild  land,  was  sold,  and  bought 
by  the  executor.  The  sale  was  declared  voidable  in  the  probate  court 
after  the  death  of  a  married  daughter,  but  her  heirs  afterwards  elected 
to  affirm  it.  Held,  the  husband  of  such  daughter,  on  releasing  his  title 
to  the  land,  should  have  a  share  of  the  proceeds,  being  the  interest 
already  accrued,  with  the  present  value  of  what  would  accrue  during 
his  life.(5)(?^) 

28  a.  There  is  no  tenancy  b}^  the  curtesy,  in  an  estate  held  in  trust 
for  the  benefit  of  a  married  woman,  as  if  she  were  a  feme  sole,  and  so 
that  the  same  shall  not  be  in  the  power,  or  subject  to  the  debt,  contract. 


(1)  Buckworth  v.  Thurkell,  3  B.  &  P.  652, 
n.  a.*     See  Moody  v.  King,  2  Biiig.  447. 

(2)  4  Kent,  32-3,  and  n. 

(3)  Co.  Lit.  241,  a.  n.  170  ;  Doe  v.  Hutton, 


3  B.  &  P.  654. 

(4)  Sweetapple  v.  Bindon,  2  Vern.  536. 

(5)  Houghton  v.  Hapgood,  13  Pick.  154. 


*  It  is  said  by  Lord  Alvanley,  "this  case  occasioned  some  noise  in  the  profession  at  the 
time  it  was  decided."     3  B.  &  P.  653. 


(a)  See  Follett  v.  Tyrer,  14  Sim.  125. 

(6)  If  the  wife's  lands  bo  sold  in  partition  after  her  death,  the  husband,  as  tenant  by  the 
curtesy,  shall  have  the  use  of  the  proceeds  for  life,  upon  giving  security  for  re-payment  at 
his  death.     Clapper  v.  Livergood,  5  Watts,  113. 


CHAP.  VI.] 


CURTESY. 


81 


or  engagemeals  of  her  husband,  with  the  remainder  to  her  heirs  or 
appointees.(l)  So  a  husband,  who  lias  conveyed  land  to  another  in 
trust  lor  his  wile,  is  not  entitled,  on  her  death,  to  a  tenancy  by  the 
curtesy  in  the  trust  estate.(2) 

29.  Only  estates  of  inheritance  are  subject  to  curtesy,  which  is  indeed 
merely  a  continuation  of  the  inheritance.  It  is  said  to  come  out  of  the 
inheritance  and  not  out  of  the  freehold,  and  cannot  exist  unless,  at  the 
very  moment  when  the  husband  takes,  the  inheritance  descends  upon 
the  children,  if  living ;  nor  where  the  estate  is  to  be  determined  by 
express  limitation  or  condition  upon  the  wife's  death. (3) 

80.  Devise  to  A  and  her  assigns  for  life.  If  she  should  marry,  and 
die  leaving  issue  male,  then  to  such  issue  and  his  heirs  male  forever. 
A  married,  had  issue,  and  died  living  her  husband.  Held,  as  A  never 
bad  an  inheritance,  the  husband  could  not  have  curtesy,  and  this  was 
manifestly  the  intent  of  the  testator.(4) 

31.  If  the  issue  take  as  purchasers,  the  husband  shall  not  have  cur- 
tesy,— as  where  there  was  a  devise  to  the  wife  and  her  heirs ;  but  if  she 
died  leaving  issue,  then  to  such  issue  and  their  heirs.  So,  in  case  of  a 
trust  for  the  wife  during  her  life,  then  to  her  children  ;  the  husband 
takes  n(jthing.(5) 

32.  Devise  to  A  and  her  heirs.  If  she  died  before  her  husband,  he  to 
have  £20  a  year  for  life  ;  the  remainder  to  go  to  the  children.  A  dies 
before  her  husband.     Held,  he  should  not  have  curtesy .(6) 

33.  A  woman,  tenant  in  tail,  convej^s  b}'  lease  and  release  to  trustees, 
for  the  use  of  herself  till  marriage,  remainder  to  her  intended  husband 
for  life,  remainder  to  herself  for  life,  remainder  to  the  issue  in  tail. 
Held,  the  husband  could  not  claim  after  her  death,  either  under  the 
settlement,  because  this  interfered  with  the  estate  of  the  issue  in  tail,  or 
as  tenant  by  the  curtesy,  because  upon  the  marriage  he  took  an  estate 
for  the  life  of  the  wife,  and  she  had  no  inheritance  in  possession. (7) 

34.  Nor  shall  there  be  curtesy  where  the  issue  take  as  purchasers, 
though  the  ultimate  remainder  or  reversion  in  fee  is  in  the  wife.  Thus, 
in  BooOihy  v.  Vernon,  {siqna,  s.  30,)  the  wife  was  heir  to  the  testator,  and 
therelbre  seized  of  the  reversion  in  fee. 

;-;5.  The  question  is  not  known  to  have  been  ever  directlj'  raised, 
whether  a  husband  shall  have  curtesy  in  wild  lands.  From  what  has 
been  said  {supra,  s.  7)  as  to  seizin,  there  would  seem  to  be  no  doubt 
upon  the  point.  In  one  case  in  Massachusetts,(8)  curtesy  was  allowed 
in  such  lands,  though  no  question  v/as  made  upon  the  subject.  On 
principle,  the  same  considerations  would  seem  applicable  to  curtesy  and 
dower.  It  will  be  seen  that  a  husband,  not  tenant  by  the  curtesy 
initiate,  has  no  right  to  clear  wild  lands  of  the  wife  during  her  life.(a) 

36.  Curtesy  being  an  estate  vested  immediately  by  law  in  the  hus- 
band upon  the  wife's  death,  and  he  having  had  an  initiate  title  during 


(1)  Stokes  V.  McKibbin,  1  Harris,  267. 

(2)  Rigler  v.  Cloud,  2  Harris,  3fil. 

(3)  Sumner  v.  Parlridtje.  2  Atk.  47  ;  Booth- 
by  V.  Vernon,  9  Mod.  151 ;  Simmons  v.  Good- 
ing, 5  Ired/  Kq.  382  ;  Janney  i;.  Sprigg,  7 
Gill.  197. 


(4)  Bootliby  V.  Vernon,  9  Mod.  147. 

(5)  Barker  v.  Barker,  2  Sim.  249 ;  Green 
V.  Otter,  3  B.  Moar.  103. 

(6)  Sumner  v.  Partridge,  2  Atk.  47. 

(7)  Doe  V.  Rivers,  7  T.  R.  276. 

(8)  Houghton  v.  Hapgood,  13  Pick.  154. 


(a)  Infra,  ch.  1,  sec.  2  ;  Babb  v.  Perley,  1  Greenl.  6. 

Vol.  I.  6 


82 


CURTESY. 


[CHAP.  tl. 


her  life  ;  no  entry  is  necessary  to  complete  his  ownership.  When  once 
vested,  the  estate  becomes  liable  for  his  debts,  and  cannot  be  divested 
by  his  disclaimer.  It  may  be  taken  on  execution,  and  a  voluntary 
settlement  of  it  upon  a  wife  will  be  void  against  creditors.(l) 

37.  It  will  be  seen  hereafter,  that  a  woman  may  be  barred  of  dower 
by  other  provisions  for  her  benefit.  But,  it  seems,  no  such  principle  is 
adopted  in  regard  to  curtesy. 

88.  By  marriage  articles,  a  woman  granted  to  her  intended  husband 
the  interest  of  her  money  and  the  rents  of  her  estate  in  fee-simple  for 
her  life,  to  maintain  the  house  and  educate  their  children  until  they 
were  of  age  or  married.  Held,  the  husband  should  have  curtesy,  as  if 
no  such  articles  had  been  made,  it  being  a  mere  executory  contract  as 
to  the  manner  in  which  the  general  funds  should  be  applied,  of  which 
their  estates  consisted. (2) 

39.  At  common  law,  a  husband  does  not  lose  his  curtesy  by  leaving 
his  wife  and  living  in  adultery  with  another  woman.(3)  St.  Westm. 
2,  c.  34,  provides  a  forfeiture  only  in  case  of  dower.  Nor  does  he  lose 
curtesy  by  a  divorce  for  adultery,  which  is  only  a  mensa,  &c.  A  divorce 
a  vinculo,  granted  upon  the  ground  that  the  marriage  was  void,  of 
course  destroys  the  right  of  curtesy. 

40.  In  some  of  the  United  States,  the  principle  above  stated  has 
been  changed  by  statute. 

41.  In  Indiana,  a  husband  loses  curtesy  by  leaving  his  wife  and 
living  in  adultery.  But  a  reconciUation  restores  his  right  to  curtesy. 
In  Maryland,  curtesy  is  lost  by  a  conviction  of  bigamy. (8) 

42.  In  treating  of  dower,  and  the  circumstances  which  operate  as  a 
bar  thereof,  some  remarks  will  be  made  upon  the  distinctions  between 
the  English  and  American  law  of  divorce.{a)  These  are  for  the  most 
part  equally  applicable  to  curtesy.  The  general  principle  of  American 
law  seems  to  be,  that  where  a  marriage  is  dissolved  by  divorce,  all  the 
rights  of  the  respective  parties,  growing  out  of  such  marriage,  come  to 
an  end;  and,  of  course,  that  the  husband  loses  his  right,  to  curtesy. (6) 
Such  is  the  express  provision  of  the  statutes  in  North  Carolina  and 
Pennsylvania,  and  such  is  stated  to  be  the  law  in  Connecticut.(4)  This 
principle  is  undoubtedly  applicable  in  all  the  States,  independently  of 
any  statutory  provision,  in  cases  where  a  divorce  is  decreed  for  causes 


(1)  Steadman  v.  Palling,  3  Atk.  423  ;  Wat- 
son V.  Waison.  13  Conn.  83;  Yanduzer  v. 
Vanduzer,  6  Paige,  366;  Wickes  v.  Clarke, 
8,  161.  / 

(2)  Sidney   v.   Sidney,    3   P.  Wnis.    216; 


Smoot   V.   Lecatt,    1    Stew.   590;    Wells  v. 
Thompson,  13  Ala.  793. 

(3)  Ind.  Rev.  L.  211 ;  Md.  L.  580. 

(4)  1  N.  C.  Rev  St.  241;  Purd.  214;  1 
Swift,  25.  See  Starr  v.  Pease,  8  Conn.  541 ; 
Wheeler  v.  Hotchkiss,  10  lb.  226. 


(a)  See  Dower — Divorce. 

ip]  In  Massaclmsotts  it  has  been  held,  that  a  divorce  a  vinculo  has  the  same  effect  upon 
the  title  of  the  respective  parties  to  the  wife's  lands,  as  a  dissolution  of  the  m  >rriaKe  by  the 
death  of  either.  Barber  v  Root,  10  Mass.  260;  ace.  Mattocks  v.  Stearns,  9  Verm.  326. 
By  Slat.  1789,  ch,  65,  sec.  5,  upon  divorce  a  Tnmsa,  for  cruelty  of  the  husband,  if  there 
were  no  issue  living  at  the  time,  the  wife  was  restored  to  all  her  lands,  &3.  And  this  pro- 
vision was  held  to  include  all  lands  of  hers,  owned  before  or  acquired  since  the  marriage, 
though  alienated  by  the  husband;  unless  she  had  done  something  to  divest  her  title. 
Kriger  V.  Day,  2  Pick.  31G.  Tlie  husband  cannot  ccinvey  any  greater  interest  in  the  real 
estate  of  his  wile  tlian  he  possesses.  And  wiiero  his  riglit  to  such  estate  was  during  cover- 
ture, it  is  terminated  by  a  divorce  a  vincub,  granted  for  his  misconduct,  llowey  v.  Goings, 
13  ill.  95. 


CHAP.  Vr.]  CURTESY.  83 

wbich  render  the  marriage  void  ab  initio.  But,  inasmuch  as  divorces 
are  granted  in  this  country  for  causes  arising  after  marriage,  a  distinc- 
tion is  made  in  several  of  the  States,  as  to  the  effect  upon  property,  of 
divorces  granted  for  causes  arising  after  marriage,  and  those  granted 
for  causes  arising  before  marriage,  which  render  the  marriarge  void.  In 
Maine  and  Rhode  Island,  if  the  divorce  is  granted  for'consanguinity, 
affinity,  or  impotence,  and  in  Rhode  Island  for  idiocy  or  lunacy,  all  the 
wife's  real  estate  is  restored  to  her.  So  if  granted  for  the  husband's 
ailultery,  or,  if  there  be  no  issue,  for  his  cruelty,  desertion,  or  neglect 
to  support  her,  in  Maine;  in  Rhode  Island,  lor  his  gross  misbehavior. 
On  the  other  hanel,  in  case  of  divorce  for  her  cruelty,  in  Maine,  the 
court  may  restore  her  lands ;  while  upon  a  divorce  for  her  adultery, 
or,  in  Rhode  Island,  her  cruelty,  desertion,  or  misbehavior,  the  hus- 
band shall  have  curtesy,  subject  in  Rhode  Island  to  an  allowance  by 
the  court  to  the  wife.(i)  In  New  York,  Illinois  and  Michigan,  if  the 
divorce  is  for  the  husband's  adultery,  the  wife's  lauds  are  restored  to 
her  ;  and  in  New  York,  Illinois  and  Massachusetts,  if  fur  her  adultery, 
be  has  curtesy,  subject  in  Massachusetts  to  an  allowance  to  the  wife. (2) 
In  New  Hampshire,  the  court  mai/  restore  the  wife's  lands  upon 
divorce.  In  Vermont,  they  are  restored  to  her  except  in  case  of  her 
adultery,  when  the  husband  holds  them  for  her  life,  and  afterwards  has 
curtesy. (3)  In  Ohio,  it  is  said  the  husband  loses  his  curtesy  by  divorce 
for  his  adultery,  and  also,  it  seems,  for  aggression  on  the  part  of  the 
wife  ;  though  in  the  latter  case  he  may  hold  the  land  during  her  life.(4) 
In  Delaware,  in  ease  of  aggression  by  the  husband,  her  real  estate  is 
restored  to  her.  In  case  of  lier  aggression,  it  may  be,  in  the  discretion 
of  the  court.  In  Indiana  and  Alabama,  the  disposal  of  property  is  at 
the  discretion  of  the  court.  But  neither  party  shall  be  obliged  to  part 
with  real  estate.(5)  In  Missouri,  the  guilty  party  loses  all  rights  ac- 
quired under  the  marriage.  In  Arkansas,  if  the  wife  obtain  a  divorce, 
all  property  which  came  to  the  husband  by  marriage  goes  to  her  and 
her  heirs.(6)  In  Wisconsin,  the  wife's  real  estate  is  restored  to  her 
upon  divorce,  except  for  her  adultery. 

43.  The  general  rule  of  law  upon  this  subject  will  be  controlled  by 
any  special  contract  inconsistent  therewith. 

44.  Indenture  between  A,  B,  his  wife,  and  a  trustee,  reciting  that 
A  had  before  marriage  agreed  that  B's  real  estate  should  be  "  satis- 
factorily secured  to  her  sole  and  separate  use,"  and,  on  the  part  of  A 
and  B,  conveying  her  real  estate,  upon  the  trusts,  that  the  income 
should  be  paid  her  during  coverture,  and  if  she  should  survive  A,  the 
estate  reconveyed  to  her ;  but  if  he  should  survive  her,  the  income  to 
be  paid  him  for  life,  and  at  his  death  the  estate  conveyed  'to  her  heirs. 
A  and  B  were  subsequently  divorced  for  his  adultery,  which,  by  the 
general  rule  of  law,  would  have  restored  the  reah  estate  to  her.     Held, 

(1)  I  Smith  St.  427-8-9;  R.  I.  L.  369.        ,      (-4)  Walk.  Intr.  230,  328;  Swan.  29. 

(2)  2  X.  Y.  Rev.  St.  146;  Mas.s.   lb.  483.  j      (5)  Tnd.  Rev.  L.  214;  Alab.  L.  256. 

See  Kriger  t;.  Day,  2  Pick.  316;  lUin.  Rev.  (6)  Misao.  St.  226;  Ark.  Rev.  St.  335; 
L.  238 ;   Mich.  L    140.  Wise.  Rev.  Sts.  336  ;  Dela.  Rev.  Sts.  238. 

(3)  N.  H.  L.  337  ;  "V  erm.  Rev.  St.  325-6.    I 


84  WFE  ESTATE  OF  HUSBAND,  ETC.  [CHAP.  VII. 

this   rule  of  law  was  controlled   by  the   contract,  and   that  A,   if  he 
should  survive  B,  would  be  entitled  to  the  income  ibr  his  life.(l)(a) 


CHAPTER  VII. 

LIFE  ESTATE  OF  THE  HUSBAND  IN  LANDS  OF  THE  WIFE- 


1.  Description  of  estate. 

2.  Description  and  incidents. 

4.   Statute  law  as  to  conveyance,  &c. 

6.  Liability  to  creditors. 

7.  Rents  and  profits. 


8.  Contract  by  husband. 

9.  Conveyances  by  husband  and  wife,  and 
statutory  law  relating  thereto. 

25.  Separate  trust  estate  of  the  wife. 


1.  It  has  already  been  remarked,  that  by  marriage,  seizin,  and  the 
birth  of  issue,  a  husband  becomes,  during  the  life  of  the  wife,  tenant 
by  the  curtesy  initiate.  Intimately  connected  with  such  incipient 
title,  is  the  estate  which  a  husband  has  in  his  wife's  lands,  independ- 
ently of  the  birth  of  issue.  It  has  been  remarked,  that  the  case  of  a 
tenant  by  the  curtesy  may  be  said  to  be  a  continuance  of  this  relation 
in  that  appropriate  manner.(2) 

2.  Where  a  wife  has  an  inheritance  in  lands,  the  husband  has  a 
freehold  interest  jure  uxoris,  or  the  husband  and  wife  are  seized  in  her 
right.(i)  The  husband's  interest  is  a  life  estate,  being  of  indeterminate 
duration.  It  is  a  title  to  the  rents  and  profits  during  coverture,  which, 
according  to  Lord  Coke,  he  shall  receive  as  "  governor  of  the  famil3^'' 
The  estate  remains  entire  to  the  wife  or  her  heirs,  upon  dissolution  of 

(1)  Babcoek  v.  Smith,  22  Pick.  61.  (2)  Barber  v.  Root,  10  Mass.  263. 


(a)  The  heir  of  a  motlier  cannot  recover  against  one  who  entered  under  the  father,  while 
the  latter  is  tenant  by  tlie  curtesy.  Grout  v.  Townsend,  2  Hill,  554.  It  has  been  held  in 
Kentucky,  that  wliere  the  husband  is  tenant  by  the  curtesy  initiate  at  the  time  of  a  divorce, 
and  thus  forfeits  his  title  to  the  wife's  lands  during  her  life,  he  has  no  remaining  right 
which  the  law  will  notice,  although,  a*"ter  her  death,  his  right  might  possibly  revive.  Old- 
ham V.  Ilendersotj,  5  Dana,  256.  Upon  the  termination  of  an  estate  by  the  curtesy,  the  heir 
may  bring  ejectment.     Foster «;.  Dugan,  8  Ohio,  87. 

(//)  "Tlie  husband,  by  marriage,  acquires  no  right  in  the  inheritance  of  the  wife;  lie  is 
only  entitled  to  the  possession  and  the  pernancy  of  the  profits  during  coverture."  Per 
Wilde,  J.,  2  Pick.  519.  But,  in  a  later  case,  the  same  judge  remarks,  that  they  are  seized 
in  fee  in  her  riyld.  Melvin  v.  Proprietors,  &c.,  16  Pick.  165.  It  has  been  held,  that  where 
a  riglit  of  entiy.arises  from  an  ouster  of  the  wife's  title,  the  demise  may  be  laid  either  in  the 
hu.sband's  name  alone,  or  in  their  joint  names.  Woodward  v.  Brown,  13  Pet.  1 ;  Ingraham 
V  Baldwin,  12  Barb.  9. 

A  declaration  by  husband  and  wife,  that  they  are  "  well  seized  and  possessed,"  is  suffi- 
cient. ^  Kelsey  v  Hanmer,  18  Conn.  sil. 

Upon  a  raort<;age  lo  husband  and  wife,  the  consideration  moving  from  him,  and  the  con- 
dition being  lo  Hupport  them  and  the  survivor  of  them  for  life,  the  husband  may  sue  alone. 
Blake  V  Freeman,  1  Shepl.  130.  But,  in  general,  they  must  join  in  a  suit  for  her  land. 
Bratton  V.  Mitchell,  7  Walts,  113;  Atkinson  v.  Rittenhouse,  5  Barr.  103;  a  disseizin  of  the 
inheritance  of  the  wife  being  a  disseizin  of  the  entire  joint  estate.  Guion  v.  Anderson,  8 
Humph.  298. 

The  rents  and  profits  of  real  estate,  held  in  actual  possession  by  a  co-parcener  with  the 
wife,  belong  alsoluiely  to  the  husband;  and  he  may  maintain  an  action  for  them  without 
joining  the  wife.  Dold  v.  Geiger,  2  Gratt.  98.  See  Jones  v.  Sherrard,  2  Dev.  &  B.  184  ; 
Dejaruatte  v.  Allen,  5  Gratt.  499;  Riddick  v.  Walsh,  15  Mis.  519;  Miss.  Sts.  1846,  152. 


CHAP.  VII.]  IN  LANDS  OF  WIFE.  85 

the  marriage.  Upon  the  wife's  death,  the  husband  becomes  a  tenant 
at  sufferauec.  Like  other  tenants  for  life,  he  is  entitled  to  emblements. 
He  has  no  right  to  commit  ivasle ;  which,  although  the  wife  can  main- 
tain no  action  at  law  against  him,  yet  a  court  of  chancery  will  un- 
doubLedly  restrain  by  injunction.  So,  also,  the  wile  may  bring  a  bill 
in  equity  by  her  next  friend,  to  protect  her  property  er secure  a  sup- 
port from  it.  If  the  husband  and  wife  join  in  a  bill  to  recover  her 
])roperty,  he  may  release  the  suit.  But  the  wife  may  institute  a  new 
one,  by  her  next  friend,  against  the  husband  and  the  former  defendant 
jointly.(l)(a) 

S.  The  husband's  interest  is  assignable,  and  subject  to  be  taken  on 
execution. (/>)  The  land  is  liable  to  the  wife's  debts;  the  j^^'ojifs,  to 
those  of  the  husband.     With  reference  to  the  right  of  assignment,  if  he 

(1)  Polyblmik  v.  Hawkins,  Doug.  329  ;,  sou  v.  Cairns,  20  Jolin.  301;  Dewall  v. 
Co.  Lit.  351  a;  2  Kent,  liO;  Barber  v.  Covenhoven,  5  Paige,  581  ;  Jackson  v.  Leed, 
Root,    10  Mass.   260;    Co.  Lit.   351;    Jack- |  19  Wend.  339. 

(a)  The  proceeds  of  the  sale  of  a  wife's  real  estate  cannot  properly  be  paid  over,  to  either 
her  guardian  or  husband,  without  leave  of  court.     Daniel  v.  Daniel,  2  Rich.  Kq.  115. 

(b)  In  North  Carolina,  a  recent  statute  provide.*',  that  the  husband  cannot  sell  or  lease 
the  wife's  lands,  without  her  consent,  expressed  upon  private  examination,  as  in  case  of 
conveyances  in  which  she  joins.  Also,  tliat  the  land  shall  not  be  taken  on  execulioa 
against  him.  N.  C.  Sts.  1848-9',  90.  Similar  acts  have  been  passed  in  Virginia,  Kentucky, 
Mississippi,  Georgia,  Vermont,  Pennsylvania  and  Maryland.  Verm.  Sts.  1847.  26;  1850,  13; 
Virg.  Sts.  1853,  323;  Ky.  Sts.  1846,  43;  Ga.  Sts.  1849-50,  63;  Penns.  Sts.  1850,  No.  342, 
s.  20;   Md.  Sts.  1853,  323;   Miss.  Sts.  1846,  152. 

The  levy  of  an  execution  against  a  husband  upon  his  wife's  land,  during  his  life,  pa.sses 
his  interest,  though  the  return  does  not  state  whether  he  is  entitled  to  curtesy.  Litclitield 
V.  (judwortl),  15  Pick.  23.  So,  an  extent  upon  all  his  interest,  &c.,  in  her  land,  passes  all 
his  interest,  however  acquired,  though  the  return  does  not  describe  the  land  as  held  in  her 
riglit.  lb.  In  Massaeliusetts,  a  husband's  interest  in  land  of  the  wife  may  be  levied  on, 
eitiier  by  taking  the  rents  and  prolits  for  a  certain  time,  or  the  whole  estate,  at  an  appraisal 
founded  on  the  probable  duration  of  his  life.  lb.  But,  where  the  amount  of  the  execution 
is  less  than  the  value  of  the  estate,  it  seems,  the  former  modo  of  levy  is  tlie  proper,  if  not 
the  only,  legal  one.     lb. 

An  execution  was  extended  tipon  land  held  by  the  debtor  in  right  of  his  wife,  as  upon 
an  estate  in  fee-simple,  but  no  entry  was  made,  and  husband  and  wife  continued  to  occupy 
till  she  died,  leaving  no  children.  Held,  the  proceeding  was  no  disseizin  of  her,  and  her 
heirs  might  maintain  a  writ  of  entry,  declaring  upon  their  own  seizin,  without  an  actual 
entry.     Larcom  v.  Cheever,  16  Pick.  260. 

The  husband  having  erected  buildings  during  the  wife's  life;  held,  neither  he,  after  her 
death,  nor  the  creditor,  could  make  a  claim  for  hetltrrnents,  as  against  the  lieirs.  lb.  See 
Mattocks  V.  Stearns,  9  Verm.  326;  Canby  v.  Porter,  12  Ohio,  79  ;  McComiko  v.  Sawyer,  12 
N.  H.  397.  Where  an  execution  against  a  tenant  by  the  curtesy  initiate  is  extended  upon 
his  land,  as  if  he  owned  the  fee,  the  creditor  acquires  a  freeiiold  for  the  life  of  the  debtor. 
Mecljanics,  &c.  v.  Williams,  17  Pick.  438.  In  Maryland,  the  husband's  interest  is  not  liable 
to  his  creditors,  living  tiie  wife.  Md.  St.  1841-2,  cli.  161.  In  Connecticut,  during  the  life 
of  her  or  her  issue.  Conn.  St.  1845,  36.  Such  interest  passes  to  the  sheriS"  under  in- 
solvency proceedmgs ;  and  a  purchaser  from  tlie  sheriff  becomes  a  tenant  for  life,  liable  to 
an  action  of  waste  by  the  husband  and  wife.     Dejarnatle  v.  Allen,  2  Gralt.  499. 

Wliere  a  husband  has  possession  of  his  wife's  real  estate,  equity  will  not  enjoin  the  sale 
of  his  life  estate,  for  tiie  payment  of  meritorious  judgments  against  him;  nor  make  a  provision 
for  iier  therefrom.     Mitcliell  v.  Sevier,  9  Humph.  146. 

Where  a  debtor  had  a  fee-simple  in  an  undivided  half  of  certain  premises,  and  curtesy  in 
the  remainder,  and  the  creditor  levied  upon  a  portion  of  the  premises  by  metes  and  bounds, 
treatitig  it  as  an  estate  by  the  curtesy ;  held,  the  levy  was  void,  and  passed  no  title,  as 
again.st  a  creditor  of  the  same  debtor,  who  acquired  title  to  the  land  by  a  subsequent  valid 
levy,     ilowe  v.  Blanden,  21  Verm.  315. 

Where  property  is  conveyed  absolutely  to  a  married  woman,  by  a  stranger,  the  statute  of 
frauds  has  no  application,  in  a  contest  between  the  wife  and  the  creditors  of  the  husband  ; 
it  is  therefore  unimportant,  whether  the  instrument  is,  or  is  not,  recorded.  Newman  v. 
James,  12  Ala.  29. 


86  I^lfFE  ESTATE  OF  HUSBAND  [CHAP.  YII, 

is  teuant  b}-  the  curtes}',  or  after  the  birth  of  issue,  he  may  transfer 
the  estate  for  his  own  life  ;  otherwise,  only  for  the  joint  lives  of  him- 
self and  the  wife.  It  is  said  that  he  may  even  convey  the  entire 
inheritance ;  that  is,  so  as  to  vest  in  the  purchaser  a  wrongful  fee, 
liable  to  be  defeated  by  the  entry  or  action  of  the  wife  after  his 
death. (1) 

3  a.  Where  the  wife  was  a  tenant  in  common,  and  the  husband  and 
the  other  tenant  made  partition,  it  was  held,  that  the  husband's  release 
destroyed  her  tenancy  in  common,  at  least  during  the  husband's  life. (2) 
But  the  law  will  not  permit  a  husband  to  hold,  or  to  put  in  the  possession 
of  another,  to  be  held  adversely,  any  property  placed  in  his  possession 
belonging  to  his  wife,  during  her  coverture  ;(8)  and  possession  of  the 
lands  of  a  wife,  under  authoi'ity  of  her  husband,  is  not  adverse  to  the 
right  of  the  wife,  or  her  heirs,  but  consistent  with  it.(4) 

4.  In  Kentucky  and  Wisconsin,  it  is  provided,  that  a  wife,  after  the 
husband's  death,  may  enter  and  sue  for  her  lands  lost  by  his  default. 
Also,  that  in  case  of  suit  against  them,  which  the  husband  will  not  de- 
fend, she  may  make  defence  at  any  time  before  judgment,  and  that  no 
conveyance  or  other  act  of  the  husband  shall  affect  the  title  of  her  or 
her  heirs,  or  others  having  title  by  her  death.  In  Kentucky  and  Vir- 
ginia, if  her  laud  is  lost  by  a  judgment  against  him  by  default,  she 
]gaay,  in  a  suit  against  the  tenant,  put  him  to  proof  of  his  title.(o) 

5.  In  New  Jersey,  a  statute  provides  for  an  entry  by  the  wife,  her 
heirs,  or  other  owner  of  the  estate,  notwithstanding  any  feoffment,  fine, 
&c.,  by  the  husband. (6)  In  Connecticut,  the  husband's  separate  convey- 
ance of  the  wife's  inheritance  is  ipso  facto  void.  In  Ohio  and  South 
Carolina,  it  will  pass  his  estate,  and,  in  Ohio,  may,  as  an  agreement, 
bind  him  to  procure  her  conveyance,  or  make  compensation. (a)  The 
statute  of  limitation  does  not  run  against  the  wife  till  the  husband's 
death.(7) 

6.  An  assignee  of  the  husband's  estate,  by  levy  of  an  execution,  is 
liable  to  an  action  of  trespass  by  husband  and  wife  for  waste:.  The 
husband's  ability  to  commit  waste  without  subjecting  himself  to  an  ac- 
tion, is  a  mere  powei\  or  exemption  from  suit,  resulting  from  the  con- 
jugal relation  ;  not  a  right^  nor  transferable.  The  effect  of  a  levy  on 
the  husband's  interest,  is  the  same  as  that  of  a  conveyance  by  him, 
which  would  pass  the  freehold,  leaving  the  reversion  in  fee  in  the  wife. 
The  husband's  joining  in  the  suit  is  merely  made  necessary  by  the 
general  rule  of  pleading.  (8) 

(1)  See  Larcora  v.  Cheever,  16  Pick.  260;  \  (5)  1  Ky.  Rev.  L.  581-2;  1  Yirg.  Rov.  C. 
2  Kent.  112;  Eldridcro  v.  Preble,  34  Maine,  :  171  ;  Wis.  Rev.  Sts.  584. 

148;  Coffin  v.  Morrill,  ib.  352;    M'Claim  v.  i    ,  (6)  N.  J.  Rev.  C.  263. 
Gregg,  2  Marsh.  457  ;  Evans  v.  Kingsberry,  !      (7)  Anth.  Shep.   160 ;  Brown  v.  Spand,  4 
2  Rand.  120;   1  Prest.  Abstr.  334,  435,  436;  ,  Con.  S.  C.  12;  Kewcomb  v.  Smith,  Wright, 
Oldham  v.  Henderson,  5  Dana,  256.  208;  Reynolds  v.  Clark,  ib.  656;  Williams  v. 

(2)  Trask  v.  Patterson,  29  Maine.  499.  Pope,  ib.  406. 

{3}  Meraraan  v.  Caldwell,  8  B   Moii.  32.      :      (8)  Babb  v.  Parley,  1  Greenl.  6. 
(4)  Vanarsdall  v.  Fauntleroy,  7  B.  Mon.  401.  ■ 


(a)  It  seems,  at  common  law,  alienation  by  the  husband  of  the  wife's  land  was  a  discon- 
tinvMnce.  But  this  rule  was  changed  by  St.  Hen.  8,  ch.  28.  (See  Detheridge  v.  Woodruff, 
3  Mon.  245.)  This  statute  is  part  of  the  common  law  of  Massachusetts.  Bruce  v.  Wood,  1 
Met  542. 


CHAP.  VII.]  IN  LANDS  OF  WIFE.  87 

7.  The  rents  and  profits  of  the  wife's  lands  belong  absolutely  to  the 
husband,  and,  upon  his  death,  do  not  pass  to  the  wife. 

8.  On  the  other  hand,  no  eontract  of  his  binds  her,  if  she  survive 
him.  Thus,  a  purchaser  from  him  of  trees  on  the  land  cannot  cut 
them  after  his  death. (1) 

8  a.  A  fhne  covert  was  entitled  to  real  estate  for  ber  separate  use, 
and  her  husband  entered  into  a  contract  for  the  sale  of  the  property. 
Before  the  contract  was  completed,  the  wife  died,  having  devised  the 
estate  to  her  husband.  Held,  on  a  claim  filed  by  the  husband  surviving 
to  ii-n force  ihe  contract,  that  a  decree  to  that  effect  could  not  be  made 
in  the  absence  of  the  wife's  heir.(2)(a) 

8  b.  A  testator  left  a  legacy  to  a  married  woman,  to  be  invested 
by  his  executors  in  real  estate,  which  should  be  conveyed  to  her  for 
her  sole  and  separate  use,  and  to  her  heirs  and  assigns  forever,  but  not 
be  liable  for  the  debts  of  her  husband.  Land  was  purchased  and  con- 
veyed to  the  wife  accordingly,  but,  the  legacy  proving  less  than  the 
purehase-mone}',  the  husband  and  wife  jointly  made  up  the  balance. 
The  estate  was  afterwards  sold  on  a  judgment  against  the  husband. 
Held,  the  purchaser  was  entitled  to  hold  it  only  until  he  was  paid  the 
portion  of  the  purchase-money  advanced  by  the  husband  and  wife.(3) 

8  c.  A  judgment  creditor  has  no  lien  on  the  wife's  real  estate  for 
money  laid  out  on  it  in  repairs  by  the  husband.(4)  So  the  estate  held  in 
trust  for  a  married  woman,  or  the  interest  and  income  thereof,  cannot 
be  charged  with  an  order,  drawn  by  her  husband,  for  repairs  done 
upon  other  real  estate  of  the  wife,  not  included  in  the  trust  deed, (5) 

8  d.  When  lands  of  the  wife  have  been  sold  by  an  agent,  the 
money  received  therefor,  in  his  hands,  belongs  to  the  husband, 
and,  after  his  death,  may  be  received  by  his  administrator.  The 
widow  cannot  recover  such  money  from  the  agent,  either  in  law  or 
equity. (6) 

8  e.  A  husband,  after  the  death  of  his  wife,  may  maintain  an  action 
to  recover  for  use  and  occupation  of  the  wife's  real  estate,  by  the  per- 
mission of  the  plaintiff  and  his  wife  during  coverture.(7) 

9.  It  will  be  seen  hereafter,  that  the  deed  of  a  married  woman  is 
in  general-  void.  But,  by  statute  3  &  4  Wm.  4,  ch.  74,  a  wife  may 
convey,  with  the  husband's  consent,  and  with  a  private  acknowledg- 
ment, and  it  is  the  settled  rule  in  all  the  States,  founded  in  most  of 
them  upon  express  statutes,  that  the  joint  deed  of  husband  and  wife 
will  pass  the  wh(jle  estate  of  both.  Unless  the  husband  join,  the  deed 
is  void.     Parol  evidence  of  his  assent  is  iuadmissible.(b)(^) 


(1)  Clapp   V.    Stoughton,    10    Pick.    463; 
Plow.  219. 

(2)  Harris  v.  Mott,  7  P^ng.  L.  k  Kqu.  245. 

(3)  Liclit}'  V.  Hager,  1  Harr,  565, 

(4)  lb. 

(5)  L'Amouroux  i'. Van  Rensselaer,  1  Barb. 
Ch.  34. 


(6)  Crosby  v.  Otis,  32  Maine,  256. 

(7)  Jones  v.  Patterson,  11  Barb.  572. 

(8)  Watts  V.  Wadelle.  1  M'L.  203  ;  Tay- 
lor, 3  Ilarr.  Dig.  (Suppl.)  715;  Trimmer  v. 
Heagg,  4,  484  ;  Scott  v.  Purcell,  7  Blackf. 
66.  See  Ward  v.  Amorv,  Curtis,  419;  Ky. 
Sts.  1846,  43. 


(a)  But  a  deed  by  the  husband  alone  passes  his  own  interest,  though  made  without  the 
wife's  knowledge  or  assent,     llangeley  v.  Spring,  8  Shepl.  130. 

An  alien  husband  may  join  with  his  wife  in  the  conveyance  of  her  real  estate.     Kottmau 
V.  Ayer,  1  Strobli.  552. 

(b)  A  conveyance  by  husband  and  wife  to  a  third  person,  for  the  purpose  of  having  the  land 


88  I'IFE  ESTATE  OF  HUSBAND  [CHAP.  VII. 

10.  In  some  of  the  States,  where  such  conveyance  is  authorized  by 
express  statutes,  it  seems  that,  prior  to  the  enactment  of  such  statutes, 
the  practice  had  oecomea  common  one.  But  the  court  in  South  Caro- 
lina said,  they  would  not  sustain  a  vulgar  error  in  direct  opposition  to 
the  law  of  the  land.(l)  In  that  State,  however,  an  act  was  passed,  to 
give  eftect  to  prior  deeds  of  this  nature. 

11.  In  nearly  all  the  States,  except  those  of  New  England,(a)  and  in 
Rhode  Island,  to  render  such  deed  effectual,  the  wife  must  undergo  an 
examination,  for  the  purpose  of  ascertaining  whether  she  acts  voluntari- 
ly, or  by  undue  influence  of  the  husband.  It  is  essential  that  the  ex- 
amination be  made  apart  from  the  husband,  except  in  Georgia,  where 
this  requisition  seems  to  be  omitted. (2)(6) 

12.  In  Virginia,  it  has  beeu  held  that  the  private  examination  or 
something  equivalent  is  necessary  to  pass  merely  equitable  rights.(3) 

13.  In  Illinois,  if  the  examining  magistrate  does  not  personally  know 
the  woman,  her  identity  must  be  proved  by  one  witness.  In  the  same 
State,  she  is  capable  of  conveying,  if  over  eighteen  years  of  age.  In 
Missouri,  the  identity  is  to  be  proved  by  two  witnesses. 

14.  It  has  been  sometimes  held,  that  the  wife's  conveyance  may  be 
effectual,  although  some  statutory  requisitions  merel}^  formal  are  not 
complied  with.  Thus  in  Ohio,  where  the  magistrate's  certificate  stated 
only  the  substance  of  the  transaction,  this  was  held  sufficient.  And  a 
statute' of  Pennsylvania  declares  valid  all  deeds  made  prior  to  Septem- 
ber 1,  1836,  though  the  certificate  be  defective.  A  similar  statute 
exists  in  South  Carolina.(4)(c) 

14  a.  Acknowledgment,  that  the  wife  executed  the  deed,  without 
"fear,  threat  or  compulsion  of  her  husband,"  but  not  saying  "freely." 
There  was  no  evidence  of  force  or  compulsion.     Held  sufficient.(5) 


(1)  4Cou.  S.  C.  15  ;  Bool  V.  Mix,  17  Wend. 
119;  Gillett  v.  Stanlej-,  1  Hill,  121. 

(2)  1  Vir.  Rev.  L.  158 ;  1  N.  C.  R.  S.  22*1 ; 
Mich.  L.  158;  Anth.  Shep.  55,  234,  281,  389, 
539,  548,  593  ;  Prince's  Dig.  160  ;  Alab.  L. 
93 ;  Whiting  v.  Stevens,  4  Conn.  44 ;  Ind. 
Rev.  L.  271;  1  Ind.  R.  379;  Illin.  Rev.  L. 
133-4 ;  Misso.  St.  122  ;  1  Ky.  Rev.  L.  440 ; 


Dela.  St.  1829,  89 ;  4  Griff.  756,  660 ;  Elliott 
V.  Piersoll,  1  M'Lean,  13  ;  Howell  v.  Ash- 
more,  2  N.  J.  261. 

(3)  Countzz;.  Geiger,  1  Call,  167  ;  see  Bryan 
V.  Stump,  &c.,  8  Gratt.,  241. 

(4)  Walk.  iDtr.  326  ;  Purd.  Dig.  205  ;  Beck- 
with  V.  Lamb,  13  Ired.  400. 

(•5)  Meriam  v.  Harsen,  2  Edvir.  Oh.  70. 


conveyed  to  the  husband,  and  thus  transferring  it  to  him,  will  be  sustained,  where  no  fraud 
has  been  practiced  upon  the  wife.     Shepperson  v.  Shepperson,  2  Gratt.  501. 

The  separate  deed  of  a  married  woman  to  a  third  person  has  been  held  good  consideration 
for  a  note  to  her,  in  the  absence  of  fraud  or  mistake.  Sanbord  v.  French,  2  Fost.  (N. 
H.)  246. 

(a)  In  Indiana,  no  peculiar  acknowledgment  is  required,  Rev.  Sts.  232. 

(&)  Tlie  acknowledgment  of  the  deed  of  a  married  woman  is  held  absolutely  necessary  to 
its  validity,  even  between  the  parties;  while,  in  other  cases,  it  is  necessary  only  in  refer- 
ence to  tliird  per.sons,  claiming  adversely  to  the  grantee.  Hepburn  v.  Dubois,  12  Pet.  345. 
It  is  not  sufficient,  that  the  husband,  after  signing  himself,  by  her  direction,  and  in  her  pre- 
sence, signs  her  name,  though  both  afterwards  acknowledge  the  deed.  Linslee  v.  Brown, 
13  Conn.  192.  In  Delaware  it  is  provided  by  Statute,  (Rev.  Sts.  269,)  that  the  private  ex- 
amination of  tlie  wife  shall  be  effectual,  tl^ugh  the  deed  is  not  recorded. 

(c)  In  New  York  it  is  an  ancient  usage  for  femes  covert  to  convey  their  lands.  But  ac- 
knowledgment has  always  been  held  necessary.  Hence,  such  conveyance  made  in  New 
Jersey,  in  1760,  without  acknowledgment,  was  held  void.  Constantine  v.  Van  Winkle,  2 
Hill,  240.  It  has  been  held  in  Ohio,  that  a  law,  giving  effect  to  the  deed  of  a  feme  covert, 
which  was  invalid  at  the  time  of  its  execution,  is  unconstitutional  and  void.  Good  v. 
Zercher,  12  Oluo,  364.  In  New  Hampshire,  where  a  husband  is  under  guardianship,  the 
wife  may  validly  join  with  the  guardian  in  a  deed.     Rev.  Sts.  297. 


CHAP.  VI  I.] 


IN  LANDS  OF  WIFE. 


89 


15.  But  substantial  deviations  from  the  form  prescribed  will  render 
the  deed  invalid.  Thus,  where  a  statute  requires  the  wife  to  renounce 
her  right  to  lands,  in  the  manner  required  in  a  case  of  dower,  and  to 
renounce  all  her  estate,  interest  and  inheritance;  a  renunciation  of  all 
her  interest  and  estate^  and  also  all  Jier  rigid  and  claim  of  dower,  will  not 
pass  her  land. (a)  So,  in  case  of  a  conveyance  by  a  husband,  in  his  own 
name,  of  his  wife's  land,  she  merely  signing  and  sealing  the  deed  "in 
token  of  her  relinquishment  of  all  her  right  in  the  bargained  premises  ;" 
held,  her  interest  did  not  pass,  and,  after  his  death,  she  might  maintain 
a  writ  of  entry  for  the  land,  on  her  own  seizin.  And  no  amendment 
will  be  allowed  in  the  defective  acknowledgment  of  a  wife,  upon  parol 
evidence.  So,  it  must  appear  hy  tlie  certificate,  that  the  acknowledg- 
ment was  legal. (1) 

15  a.  Deed  by  husband  and  wife  of  her  land.  The  acknowledgment 
was  as  follows:  "  Then  the  above-named  Ansel!  Chui-chill,  (meaning  the 
grantor,)  personally  appearing,  acknowledged  the  above  written  instru- 
ment to  be  his  voluntary  act  and  deed,  and  the  said  Lillis  (wife)  being 
examined'  separately  and  apart  from  her  husband,  also  acknowledged 
the  same  before  me,"  &c. ;  signed  by  the  justice.  Held,  only  the  life 
estate  of  the  husband  passed. (1) 

15  h.  It  has  been  held  in  Pennsylvania,  that  the  act  of  1770,  re- 
quires both  husband  and  wife  to  join  in  a  conveyance  of  real  estate,  to 
which  she  was  entitled  in  fee.  Its  directions  are  imperative.  Such  a 
deed,  executed  by  her  alone,  is  void,  and  parol  evidence  that  she  exe- 
cuted the  deed  with  the  assent,  and  by  the  direction  of  her  husband,  is 
inadmissible.(2)  But  a  conveyance  or  the  wife's  land  by  deed,  in  which 
she  and  her  husband  join,  passes  her  title,  though  not  to  a  purchaser 
for  a  valuable  consideration. (8) 

16,  In  conformity  with  the  principles  above  stated,  a  usage  or  stat- 
ute, authorizing  a  married  woman  to  convey  her  land,  being  a  departure 
from  the  common  law,  will  be  strictly  limited  to  an  actual  transfer  of 
the  property.  Thus,  a  mere  agreement  by  her  to  convey,  though  made 
for  valuable  consideration,  and  with  consent  of  the  husband,  is  void, 
even  in  Chancery. (6)     So,  in  general,  she  is  not  bound,  nor  her  heirs, 


(1)  Churchill  v.  Monroe,  1  R.  I.  209  ; 
Brown  v.  Sparel,  4  Con.  S.  C.  12;  Bruce  v. 
Wood,  1  Met.  542 ;  Elliott  v.  Piersoll,  1 
M'L.  13  ;  Raymond  v.  Holden,  2  Cush.  264: 
McDaniel  v.  Priest,  12  Miss.  544 ;  James  v. 


Fisk,  9  S.  &  M.  144 ;  Jordan  v.  Corey,  2  Cart. 
385  ;  Elwood  v.  Klock,  13  Barl).  50. 

(2)  Trimmer  v.  Heag^y,  4  Harr.  484. 

(3)  Goundie  v.  Northampton,  &c.,  7  Barr, 
233. 


(a)  The  converse  of  the  same  rule  applies  to  a  release  of  dower.  A,  a  widow  administra- 
trix, in  conjunction  with  B,  her  co-adniinistrator,  executed  a  deed,  pursuant  to  and  reciting 
a  contract  by  her  deceased  husband,  and  the  decree  of  the  court  upon  it  orderinjj:  tiie  con- 
veyance. The  deed  purported  to  convey  all  the  estate  of  the  husband  in  his  lifetime,  and 
of  them  the  said  A  and  B,  since  his  decease,  and  she  signed  and  sealed  the  same  without 
adding  a  description  of  her  office.  Held,  her  dower  did  not  pass.  Shurts  v.  Thomas,  8 
Barr,  359. 

{b)  So,  also,  mere  knowledge  of,  or  verbal  assent  to  the  husband's  deed,  will  not  liind  her. 
So,  she  is  not  bound  by  a  pov)er  of  attorney  to  convey.     Sumner  i'.   Conant,  10  Verm.  9. 

A  husband  and  wife  cannot  be  restrained,' by  injunction,  from  bringing  ejectment  for  land 
belonging  to  the  wife,  on  the  ground  tliat  she,  when  an  infant,  gave  a  bond  of  conveyance, 
with  securitv,  for  the  land,  conditioned  to  convey  when  she  became  of  age.  Brawner  v. 
Franklin,  4  Gill,  463. 

But  where  a  female  infant  gave  such  bond,  and  the  purchase-money  was  paid  to  her 
husband,  after  his  marriage  ;  held,  he  could  be  restrained,  by  injunction,  from  recovering 
the  land  .at  law,  during  his  lifetime.     lb. 


90 


LIFE  ESTATE  OF  HUSBAXD 


[CHAP.  VII. 


by  the  covenants  in  the  deed,  though  expressed  in  her  name  as  well  as 
the  husband's,  or  by  estoppel  A  statute  of  Delaware  provides,  that 
the  wife  shall  be  bound  by  no  warranty,  except  a  special  warranty 
against  herself,  her  heirs,  and  those  claiming  under  her  ;  and  a  statute 
of  Kentuckv^,  that  the  wife's  deed  shall  not  pass  her  estate,  but  "  shall  be 
as  effectual  for  every  other  purpose,  as  if  she  were  un married. "(l)(a) 

17.  JBut  though  an  agreement  by  the  wife  to  conve}^  cannot  be  en- 
forced, an  agreement  by  the  husband,  though  merely  parol,  and  made 
directly  with  the  wife,  in  consideration  of  her  conveying  her  land,  will 
be  enforced  even  against  his  heirs. 

18.  A  husband  agreed,  in  consideration  of  such  conveyance,  to  pur- 
chase and  build  on  other  lands,  and  convey  them  to  the  wife.  He  did 
buy  and  build  upon  the  land,  but  died  Avithout  conveying.  The  hus- 
band was  very  poor  at  the  time  of  marriage,  but  the  property  agreed 
to  be  conveyed  to  the  wife  greatly  exceeded  in  value  the  land  which 
the  wife  parted  with.     The  agreement  was  enforced  against  the  heirs.(2) 

19.  On  the  other  hand,  where  it  was  verbally  agreed  between  hus- 
band and  wife,  that  he  should  purchase  land  in  her  name,  build  a  house 
upon  it,  and  be  reimbursed  the  expense  from  the  sale  of  other  land 
belonging  to  her ;  and  the  husband  fulfilled  his  part  of  the  contract, 
but  the  wife  died  before  a  conveyance  of  her  land  ;  it  was  decreed  in 
Chancery,  that  the  guardian  of  her  infant  heirs  shouhl  convey  with 
the  husband,  and  the  proceeds  of  sale  be  applied  according  to  ihe 
contract.(3) 

20.  A  statute  requiring  private  examination  of  the  wife,  does  not 
apply  to  a  conveyance  made  by  an  executrix  under  a  devise  to  sell, 


(1)  Wadleigh  v.  Glines,  6  N.  H.  17;  Do- 
miDick  V.  Michael,  4  Sandf.  374  ;  Dela.  St. 
1829,  89  ;  Whitbeck  v.  Cook,  15  John.  483  ; 
1  Ky.  Rev.  L.  440  ;  Colcord  v.  Swan,  7 
Mass.  291;  Dut.  Dig.  15;  Illin.  Rev.  L. 
134  ;  Misso.  St.  122  ;  Butler  v.  Buckingham, 
5  Day,  492 ;  Watrous  v.  Chalker,  7  Conn. 
228  ;  Ex  parte  Thomes,  3  Greenl.  50  ;  Lane 


V.  McKeen,  3  Shepl.  304  ;  Rangeley  v.  Spring, 
8,  130  ;  Aldridge  v.  Burlison,  3  Blackf  201 ; 
Verm.  Rev.  St.  311;  Horsey  v.  Horsey,  4 
Harring.  517  ;  Den  v.  Demarest,  1  N.  J.  525. 

(2)  Gosden  v.  Tucker,  6  Mun.  1. 

(3)  Livingston  v.  Livingston,  2   John.  Ch. 
537. 


But  if  husband  and  wife  make  a  deed,  ineflfectual  against  her,  under  which  the  grantee 
enters  and  occupies;  and  after  her  death  her  heir  brings  a  suit  for  the  land;  the  grantee 
is  estopptd  to  deny  his  title.     Drane  v.  Gregory,  3  B.  Mon.  619. 

TiiouRh  in  general  an  estoppel  must  be  mutual;  yet,  where  a  conveyance  was  made  by 
husband  and  wife,  and  possession  taken  under  their  deed,  of  land  claimed  by  the  wife, 
though  the  deed  be  ineffectual,  from  defect  in  the  acknowledgment,  to  pass  the  title  of  the 
wife,  the  grantees  are  estopped  to  assert  an  outstanding  title  in  a  third  person,  in  a  con- 
test with  the  heirs  of  the  wife,  after  the  death  of  the  husband.  Gill  v.  Fauntleroy,  8  B. 
Mon.  177.  So,  on  the  other  hand,  such  deed  is  binding  upon  all  except  the  wife  and  those 
claiming  under  her.  Lewis  v.  Cook,  13  Ired.  193. 

(a)  In  New  York,  tlie  wife  is  estopped  from  denying  any  essential  fact,  admitted  in  the 
deed.  So,  all  who  claim  under  her.  Constantine  v.  Van  Winkle,  2  Hill,  240.  In  Michigan, 
she  is  not  bound  by  the  covenants.  Rev.  St.  258.  In  Maine,  neither  by  covenants  nor 
estoppel.  Rev.  iit.  372.  In  Ohio,  whether  she  is  bound  by  the  covenants,  qu.  Hill  v. 
West,  8  Ohio,  222.  It  has  been  held  in  Massachusetts,  that  she  is  estopped  by  covenant 
of  warranty  to  deny  her  title  at  the  time  of  conveyance.  Nash  v.  Spoflbrd,  10  Met.  192. 
See  Raymond  v.  Holden,  2  Gush.  2G4. 

Where  a  husband  conveyed  his  wife's  land,  she  not  legally  executing  the  deed,  and 
took  a  conveyance  of  other  land  in  exchange,  the  wife  not  objecting,  and  declaring  her- 
self pleased  with  the  exchange  ;  her  heirs  are  not  estopped  in  equity  to  claim  the  land,  it 
not  appearing  that  she  was  acquainted  with  her  title,  and  there  being  no  evidence  of  fraud 
on  her  part.     McClure  v.  Douthitt,  6  Barr,  414. 


CHAP.  VIL] 


IN  LANDS  OF  WIFE. 


91 


nor  need  the  busbaml  join  in  tlie  deed.     Such  statute  does  not  apply 
to  a  deed  of  the  wife's  separate  trust  property. (1) 

21.  Where  the  husband  and  wife  join  in  conveying  her  land,  a  note 
for  the  price,  given  to  her  alone,  survives  to  her  upon  tUe  death  of  the 
husband.(2) 

22.  Husband  and  wife  may  join  in  a  mortgage  of  the  wife's  land,  as 
well  as  an  absolute  deed.  But  the  wife's  interest  shall  be  thereby  in- 
cumbered, only  to  the  amount  of  the  mortgage  debt.  Hence,  if  the 
husband's  right  of  redemption  be  taken  by  his  creditors  and  sold,  the 
wife  may  redeem  the  land  by  paying  the  mortgage  debt  only,  without 
the  additional  sum  for  which  the  equity  was  purchased.(3) 

23.  Where  such  mortgage  is  made  for  the  husband's  debt,  the  wife, 
though  not  personally  bound,  is  a  mere  surety,  and  the  mortgage  will 
be  discharged  by  any  such  new  credit  given  to  the  pi'incipal,  as  would 
discharge  a  common  suret3\(4) 

24.  Where  a  feme  covert  purchases  real  estate,  and  for  a  part  of  the 
consideration  gives  back  a  mortgage,  in  which  the  husband  does  not 
join  ;  upon  a  bill  for  foreclosure,  the  mortgage  shall  constitute  an  equi- 
table lien  upon  the  land,  as  against  one  who  purchased  with  notice  of, 
and  expressly  subject  to,  the  mortgage.(5) 

24  a.  Where  a  wife  owned  a  dower  interest  in  four-sixths  of  certain 
real  estate,  of  which  her  former  husband  died  seized,  and  owned  in  fee 
the  remaining  two-sixths,  and  the  husband  and  wife  united  in  a  sale, 
and  out  of  the  proceeds  of  such  sale  the  sum  of  $3,000  was  paid,  with- 
oat  the  husband's  assent,  upon  a  mortgage  which  incumbered  the  wife's 
separate  estate ;  held,  the  husband  had  a  claim  upon  such  separate 
estate  to  that  extent.  But  another  sum  of  $2,000,  out  of  such  proceeds, 
appearing  to  have  been  paid  upon  the  same  mortgage,  with  the  hus- 
band's unqualified  assent ;  held,  such  payment  was  a  valid  appropria- 
tion of  that  sum  to  the  wife's  separate  use,  and,  in  respect  to  it,  the  hus- 
band had  no  claim  uj)on  the  separate  estate. (6) 

25.  It  will  be  seen, (a)  that  where  an  estate  is  limited  to  the  separate 


(1)  Tyfee  v.  Williams,  3  Bibb,  368  ;  Brun- 
dige  V.  Poor,  2  Gill  &  J.  1. 

(2)  Dean  v.  Riclimond,  5  Pick.  461. 
(3j  Peabody  v.  Patten,  2  Pick.  517. 


(4)  Galin  v.  Niemcewicz,  11  Wend.  312. 

(5)  Hatch  V.  Morris,  3  l^;dw.  313. 

(6)  Martin  v.  Martin,  1  Corast.  473. 


(a)  See  oh.  22,  Trust.  A.  deed  to  a  wife  and  lier  heirs,  does  not  of  itself  vest  in  her  a 
separate  estate,  in  the  technical  sense.     Hall  v.  Sayre,  10  B.  Mon.  46. 

In  New  York,  since  the  act  of  April  7,  1S48,  for  tlie  more  eftectual  protection  of  the  pro- 
perty of  married  wonoon,  the  husband  during  coverture  has  no  interest  in  the  wife's  lands 
which  he  can  use  or  transfer,  or  which  his  creditors  can  reach.  Upon  the  death  of  the  wife 
after  issue  born,  leaving  her  husband,  it  descends  to  her  heirs,  cliarged  with  his  rights  as 
tenant  by  the  curtesy ;  and,  if  there  has  been  no  issue,  the  estate  becomes  perfect  and  abso- 
lute m  her  heirs.  Ilurd  v.  Cass,  9  Barb.  366.  A  similar  act  exists  in  Pennsylvania.  Sts. 
1848,  No.  372,  p.  536. 

A  wife's  separate  estate  is  an  equitable  estate  merely,  and  where  the  legal  title  is  vested 
in  some  other  person  for  her  benefit,  to  the  exclusion  of  her  husband.  Albany  v.  Bay,  4 
Corast.  9. 

The  legal  estate  which  a  wife  lias  in  reversion  in  lands,  where  the  husband  has  disposed 
of  his  life  estate  as  tenant  by  the  curtesy,  is  not  a  separate  estate.     lb. - 

In  South  Carolina,  a  court  of  equity  will  not  sustain  the  sale  by  a  feme  covert  of  her  sepa- 
rate estate,  although  there  is  no  restriction  on  such  sale  in  the  deed  of  settlement,  unless  it 
were  the  voluntary  act  of  the  wife,  and  under  such  circumstances  that  the  co  rt,  on  her 
examination,  if  applied  to,  would  have  ordered  it.     Calhoun  v.  Calhoun,  2  Strobh.  Eq.  231. 


92 


LIFE  ESTATE  OF  HUSBAND,  ETC. 


[CHAP.  YII. 


use  of  a  married  woman,  the  husband  shall  not  be  entitled  to  curtesy 
in  such  estate.  Upon  the  same  principle,  an  estate  thus  limited  shall 
be  owned,  in  equity,  by  the  wife  alone,  to  all  intents  and  purposes  as 
if  she  were  a  feme  sole,  subject  to  her  disposition,  and  entirely  free  from 
the  control  of  the  husband.  No  actual  conveyance  to  trustees  for  her 
separate  use  is  necessary,  but  a  mere  ante-nuptial  agreement  between  » 
husband  and  wife  will  have  the  same  effect.  Under  these  circumstan- 
ces, the  wife  may  convey  the  estate  even  to  the  husband,  provided  no 
undue  influence  be  used  on  his  part ;  and  it  has  been  settled  in  New 
York,  though  against  the  opinion  of  the  Chancellor,  that  her  convey- 
ance will  be  valid  without  the  assent  of  the  trustees,  unless  such  assent 
were  expressly  required  in  the  instrument  by  which  the  trust  was 
created.(l)     This  subject  will  be  more  fully  considered  hereafter.(a) 


(1)  Jacques  v.  Trustees,  &c.,  17  John.  548  ; 
Bradish  v.  Gibl)S,  3  John.  Cha.  540  ;  See  also 
Demarest  v.  Wyncoop,  3  lb.  144;  Smith  t?. 
P;iythreRS,  2  Fieri.  92  ;  Cruger  v.  Cruger,  5 
Barb.  225 ;  Ladd  v.  Ladd,  8  How.  U.  S  10 ; 
Strong  V.  Skinner,  4  Barb.  546 ;  Wright  v. 
Miller,  lb.  600 ;  Watson  v.  Bonney,  2  Sandf. 
405 ;  Cherry  v.  Clements,  10  Humph,  552  ; 


Boarraan  v.  Groves,  23  Miss.  280 ;  Martin  v. 
Martin,  1  Comst.  473  ;  Clarke  v.  Windham, 
12  Ala.  798;  Jasper  v.  Howard,  lb.  652  ; 
Moore  v.  Jones,  13,  296  ;  Goodman  v.  Good- 
man, 8  Ired.  Equ.  313;  Hatton  v.  Weir,  19 
Ala.  127  ;  Cuthbert  v.  Wolfe,  lb.  373;  Bar- 
ron V.  Barron,  24  Verm.  375. 


A  court  of  equity  has  no  power  either  to  make  or  confirm  the  sale  of  a /erne  co^eri's  sepa- 
rate estate,  which,  by  the  deed  creating  it,  is  expressly  prohiliited  from  being  sold.     lb. 

A  married  woman  who  has  a  separate  estate  cannot  charge  or  dispose  of  it,  unless  in  pur- 
suance of  a  power  of  appointment  expressly  given.  The  mode  prescribed  must  be  strictly 
pursued ;  and  no  alionation  or  charge  is  valid,  unless  she  has  been  examined  by  the 
court     lb. 

(a)  See  Conveyance,  Devise,  Powers.  The  separate  estate  of  a  feme  covert  in  the  hands  of 
trustees,  is  in  equity  chargeable  with  debts  contracted  for  the  benefit  of  the  estate.  So, 
this  estate  is  chargeable  where  a  portion  of  it  has  been  converted  into  other  property,  ac- 
cording to  the  provisions  of  the  trust  deed,  and  a  debt  is  contracted  for  the  benefit  of  such 
substituted  property.  Dyett  v.  N.  A.  Coal  Co.,  20  Wend.  570.  So  the  separate  estate  of  a 
feme  covert  is  bound  for  any  debt  contracted  by  her.  But  she  is  not  personally  liable.  Nor, 
where  the  property  is  held  in  trust  for  her  and  her  children,  can  she  bind  their  interest. 
American,  &c.  v.  Dyett,  7  Paige,  9  ;  Gardner  v.  Gardner,  lb.  112. 

The  separate  estate  of  a  married  woman  is  not  liable  at  common  law  for  her  debts  con- 
tracted before  marriage ;  and  the  only  ground  on  wliich  it  can  be  reached  in  equity',  is  that 
of  appointment ;  that  is,  some  act  of  hers,  after  marriage,  indicating  an  intention  to  charge 
the  property.     Yanderheyden  v.  Mallory,  1  Comst.  452. 

A  feme  covert,  in  disposing  of  her  separate  estate,  is  strictly  limited  by  the  terms  of  the 
instrument  under  which  she  claims.  Wallace  v.  Coston,  9  Watts,  137.  In  New  Hampshire, 
if  a  fen  e  covert  is  entitled  to  hold  lands  in  her  own  right,  and  to  her  separate  use,  she  may 
dispose  of  them,  and  they  shall  descend,  as  if  she  were  sole.  Rev.  St.  296.  So,  the  wife  of 
one  not  a  citizen,  residing  in  the  State  sis  months  successively,  may  acquire  and  hold  lands, 
lb.  In  Maine,  by  a  recent  statute,  a  feme  covert  may  hold  property  in  her  own  right,  but 
cannot  take  it  from  the  husband.  The  property  belonging  to  her  before,  continues  hers 
after  marriage,  not  suV)ject  to  his  debts.  She  may,  however,  release  the  control  of  it  to  him, 
80  long  as  it  may  be  for  their  mutual  benefit.  Sts.  1844,  104-5.  The  statute  is  prospective 
merely,  and  the  interest  which  a  husband  had  acquired  in  tlie  real  estate  of  his  wife,  by  a 
marriage  prior  to  that  act,  is  not  affected  by  it.  McLellan  v.  Nelson,  27  Maine,  129;  Eld- 
ridge  V.  Preble,  34  lb.  148. 


CHAP.  YIII.] 


DOWER.     NATURE,  PJTC. 


98 


CHAPTER   VII  1. 

DOWER.     NATURE  AND  REQUISITES  OF  DOWER. 


1.  Dtliiiitiou  of  dower. 

2-11.  Dower  in  the  United  States. 

10.  Origin  and  histor}'  of  dower. 

12.  Dower  favored. 

17.  Requisites  of  dower. 

18.  Marriage. 

19.  Void  and  voidable  marriage. 

22.  Marriage — how  proved. 

23.  Marriage  and  divorce  in  England. 
26.  Marriage  and  divorce  in  U.  States 


31.  Elopement,  &c. 
38.   Seizin  of  iiusband. 
42.  Reversions  and-rsruainders. 
50.  Dos  de  dote. 
61.  Instantaneous  seizin. 
6G.  Whether  husband's  seizin  may  bo  de- 
nied. 

68.  Death  of  the  husband. 

69.  Presumption  of  death. 


1.  The  third  estate  for  life,  created  by  act  of  lav,  is  Doiver.  Dower 
is  a  technical  term,  and  applicable  only  to  real  property. (l)(a)  The  cona- 
mon  law  description  of  this  estate  is  as  follows.  When  a  man  is  seized 
during  coverture  of  an  inheritance  in  lands  and  tenements,  which  by 
possibility  any  issue  of  his  wife  might  inherit,(i)  such  wife  shall  hold 
after  his  death  one-third  part  of  these  lands  and  tenements  for  her  natu- 
ral lile,(c)  as  an  estate  in  dower.  In  pursuing  this  subject,  it  will  be 
seen  that  the  foregoing  definition  is  inapplicable  in  many  of  the  United 
States,  (ci?) 

2.  In  several  of  them,  as  will  appear  under  the  title  of  Descent^  the 
widow  in  certain  cases  inherits  the  estate  of  her  husband.(e) 

(1)  Brackett  v.  Leighton,  1  Greenl.  285.    See  Caillanet  v.  Bernard,  7  S.  &  M.  316. 

(a)  A  testator,  by  his  will,  left  his  property,  real  and  personal,  in  the  possession  of  his 
wife  during  her  widowhood,  for  the  education  and  maintenance  of  his  children,  but,  in  the 
event  of  her  marriage,  he  provided  that  she  should  "have  her  dower  under  the  law,  the 
balance  to  remain  in  common  stock  for  the  children."  Held,  the  manifest  intent  of  the  tes- 
tator, in  case  his  widow  married  again,  was,  that  she  should  have  such  portion  of  his  real 
and  personal  estate,  as  the  law  entitled  her  to  have,  where  the  husband  dies  intestate,  and 
that  the  word  "dower"  should  bo  so  construed.     Paine  v.  Gupton,  11  Humph.  402. 

Dower  arises  by  operation  of  law,  not  by  contract.  Lawrence  v.  Miller,  1  Sandf.  516.  The 
statute  of  frauds  has  therefore  no  application  to  dower.  Davis  t'.<!ringle,  8  B.  Mon.  539.  In 
Iowa,  by  statute,  a  husband  has  dower  like  a  widow.     Iowa  Code,  ch.  83,  sec.  142. 

(b)  A  petition  for  dower,  alleging  tliat  the  husband  died  seized  of  land,  and  that  his  es- 
tate was  one  of  inheritance,  sufficiently  shows  the  character  of  the  husband's  title,  as  being 
a  freehold  of  inheritance.     Lecompte  v.  Wash,  9  Mis.  551. 

(c)  Tiie  estate  ceases  on  her  death,  and  a  sale  then  made  of  her  interest  passes  nothing. 
Holmes  v.  M'Gee,  12  Sm.  &  M.  411. 

{d)  Spangler  v.  Slanler.  1  Md  Ch.  36.  The  common  law  definition  is  applied  in  Dela- 
ware to  all  cases  arising  suljsequent  to  tlie  year  181G.  Dela.  Rev.  Sts.  290.  See  Hoimer- 
shits  V.  Bernhard,  1  Harr.  518 ;  Riddick  v.  Walsh,  15  Mis.  519.  The  common  law  descrip- 
tion of  dower  has  been  recently  rendered  obsolete,  even  in  England.  By  St.  3  &  4  Wm.  4, 
c.  105,  dower  is  allov/ed  in  equitable  inlieritances  and  mere  rights  of  entry  without  seizin'. 
On  the  other  hand,  there  is  no  dower  in  land  conveyed  by  the  husband,  or  devised,  or  ex- 
empted from  dower  by  will;  and  it  is  subject  to  all  incumbrances,  debts  and  partial  dispo- 
sitions made  by  the  husband.  A  devise  of  land  to  the  widow  is  a  bar  of  dower;  but  not 
a  bequest  of  personal  property,  unless  so  expressed.  In  England,  ancientlj',  by  virtue  of 
local  and  peculiar  customs,  the  right  of  dower  was  often  varied  from  the  common  law  rule. 
Thus,  by  the  custom  of  Gavelkind,  the  widow  had  half  of  all  the  lands  held  by  that  tenure; 
forfeitable  by  a  second  marriage,  or  the  birth  of  a  bastard  child.  In  some  boroughs,  the 
•wife  had  for  her  dower  all  the  tenements  that  were  her  husband's  Dower  ad  ostium  ecclestce, 
was  where  a  man,  coming  to  tlie  church  door  to  be  married,  endowed  his  wife  of  so  much  of 
his  land.  Dower  ex  assensu  patris  was  the  same,  except  that  the  land  bestowed  was  the  prop- 
erty of  the  husband's  father,  and  given  with  his  consent.  The  two  la.st  named  kinds  of 
dower  did  not  bind  the  wife,  but  she  might  still  waive  them  and  claim  dower  at  common 
law.     Co.  Lit.  33  b;   Robin.  Gavelk.  159;  Lit.  166,  39;  Brae.  lib.  2,  c.  39. 

(e)  In  several  States  recent  statutes  have  made  provision  for  securing  homesteads  to  the 


94  DOWER.     NATURE  AND  [CHAP.  VIII. 

8.  In  Pennsylvani;i(«)  and  In(]iana,(l)  if  an  intestate  leave  a  widow, 
and  no  lawful  issue,  the  former  shall  have  one-half  of  the  real  estate, 
including  the  mansiondiouse ;  or,  in  Pennsylvania,  the  rents  and  [pro- 
fits thereof,  if  a  division  is  improper,  for  her  life  in  Pennsylvania,  but, 
it  seems,  absolutely  iia  Indiana,  in  lieu  of  dower. 

4.  In  Massachusetts,  she  takes  for  life,  if  there  are  no  issue.  In  Del- 
aware, if  there  is  no  child,  or  lawful  issue  of  a  child,  the  widow  takes 
onedialf  of  the  land  for  life.  If  no  kindred,  she  takes  the  whole.  So 
in  Wisconsin,  for  life,  if  no  issue.  In  New  Hampshire,  where  there  is 
110  lineal  descendant,  and  no  provision  by  will  or  waiver  thereof,  and 
the  husband  dies  testate,  she  receives,  in  addition  to  dower,  one-third 
of  what  remains  after  payment  of  debts.  If  intestate,  one-half.  If  in 
either  case  she  so  elect,  she  may  take,  including  her  dower,  what  re- 
mains after  payment  of  debts,  &c.,  not  exceeding  what  the  husband  re- 
ceived from  her  or  *in  her  right.  These  provisions  do  not  applj',  in 
case  of  an  ante-nuptial  settlement.(2) 

5.  In  South  Carolina,  Illinois,(/>)  Missouri, (c)  Georgia,(cZ)  she  has  the 
same  right  as  in  Delaware,  (it  seems,  in  fee,)  fur  want  of  lineal  descend- 
ants, in  lieu  of  dower.(3) 

6.  In  South  Carolina,  if  an  intestate  leave  no  father,  mother,  brother 
or  sister  of  the  whole  blood,  or  their  children,  or  brother  or  sister  of 

(1)  Purd.  Dig.  402;  Anth.  Shep.  300,  303 ;    Sts.  278;  N.  11.  Rev.  St.  329-30;  Wise.  Rev. 


Ind.  Rev.  L.  208  ;   Parke  &  J.  284. 

(2)  Dela.  St.  1829,  STIG;   1843,   489;  Rev. 


Sts.  338;  Mass.  Sts.  1854,  72. 

(3)  Anth.  Shep.    586;   Illin    Rev.   L.  625; 
Misso.  St.  228;  Anth.  Shep.  608. 


widows  of  the  owners.  Thus,  in  Vermont,  a  homestead  passes  to  the  owner's  widow  and 
cliildrcn,  and  it  cannot  be  conveyed  or  mortgaged,  except  to  secure  the  purchase-money, 
but  by  joint  deed  of  liusband  and  wife.  Verm.  St.  1849,  15.  Similar  statutes  exist  in 
New  Jersey,  (St.  1852,  222-4.)  Massachusetts,  (St.  1851,  844.)  Wisconsin,  (St.  1853.) 
New  Hampshire,  (St.  1S51,  474.)  Michigan,  (Sts.  1850,  135;  1848,  124.)  Ohio,  (Sts.  1850, 
29.)  Iowa,  (Bev.  Sts.-,  ch.  81,  sec.  1245.)  In  Pennsylvania,  the  widow  or  children  may 
retain  $300  in  real  or  pqj^onal  estate  subject  only  to  a  lien  for  the  purchase-money.  Pen. 
St.  1851,  613.  So  she  may  retain  any  property  which  the  law  exempts  from  execution. 
St.  184G,  477. 

(a)  In  Pennsylvania,  the  widow  shall  have  the  real  or  personal  estate,  not  exceeding  $300. 
Sts.  1851,  613.     In  Indiana,  doiuer  is  abolished.     Rev.  Sts.  232. 

(&)  The  widow  takes  one-half  of  the  real,  and  all-tiie  personal  estate,  belonging  to  the 
husband  at  his  death,  .subject  to  debts,  and  also  her  dower.  Summers  v.  BaUb,  13  Illin. 
483;   Tyson  v  Postlethwaite,  lb.  727. 

(c)  The  word  used  is  descendant.  In  this  State  a  statute  provides,  that  when  a  husband 
dies,  leaving  a  chihi  by  a  former  -marriage,  and  a  second  wife,  but  no  child  by  her,  the 
widow  may  elect  to  take  the  personal  estate  brought  to  her  husband  by  her  marriage,  in 
iieu  of  dower.  Held,  where  she  so  elects,  such  estate  is  still  liable  for  debts,  before  the  real 
estate.     Chinn  v.  Stout,  10  Mi.s.  709. 

In  the  same  State,  a  statute  gives  dower  in  leaseholds.  And  the  assignment  of  dower, 
in  leasehold  estates?,  is  governed  by  the  same  rules  which  prevail  in  estates  of  iidieritance. 
Rankin  v.  Oliphant,  9  Mis.  239. 

Where  a  husband  dies  seized  of  a  leasehold  estate,  \y\\\(A\  is  sold  by  his  administrator,  in 
an  actimi  by  his  widow  against  the  purchasers,  for  her  dower,  she  will  be"  entitled  to  dam- 
ages Irom  the  deatii  of  her  husband;  and  where  improvements  are  placed  upon  the  land 
by  the  purchasens,  they  are  to  be  taken  into  consideration  in  assessing  damages  alter  the 
time  when  they  are  placed  upon  the  land.     lb. 

In  such  case,  no  demand  is  necessary  to  entitle  her  to  damage.',  and  the  purchaser  cannot 
therefore  plead  tout  tcm2i  prist.     lb. 

(d)  In  this  State,  the  same  code  of  laws  (Prince,  233,)  contains  these  provisions,  and  also 
another,  making  the  wife  .«ole  heir  to  her  husband,  where  he  leaves  no  issue.  (lb.  253.)  It 
is  difficult  to  see  how  both  rules  can  be  in  force. 


CHAP.  VIII.]  REQUISITES  OF  DOWER.  95 

tlic  half  blood,  or  lineal  ancestor,  the  widow  sliall  liave  two-thirds  of 
the  real  estate,  in  lieu  of  dower.(l) 

7.  In  Georgia,  where  there  are  chihlren,  the  widow  may,  at  her  elec- 
tion, have  dower,  or  an  equal  share  of  both  real  and  personal  estate 
(subject  to  debts.)(2)(a) 

8.  In  Missouri,  if  the  husband  leave  a  cliild  or  descendant  by  an- 
other marriage,  the  widow  may  take,  in  lieu  of  doiver,  the  personal 
property  that,  came  to  him  by  her  marriage,  subject  to  debts.  If  the 
husband  leave  no  child  or  descendant,  she  may  take  her  dower  at  com- 
mon law  free  from  debts,  or  the  personal  property  above  named,  sub- 
ject to  them.  But  her  election  must  be  written,  acknowledged  and 
filed  within  six  months  from  the  granting  of  administration.  Dower  in 
personalty  can  be  had  only  in  property  belonging  to  the  husband  at 
his  death. {3) 

8a.  In  Arkansas,  a  widow  is  entitled  to  dower  in  lands,  slaves,  and 
other  personal  property ;  to  one-third  ot  the  personal  property  abso- 
lutely;  to  one-third  of  the  proceeds  thereof,  in  case  the  administrator 
sells  it  without  allotting  her  dower;  to  dower  in  the  increase  of  slaves, 
accruing  between  the  death  of  her  husband  and  the  time  of  the  allot- 
ment of  her  dower;  also,  to  one-third  of  the  rents  of  land  and  hire  of 
slaves ;  and  she  may  hold  the  mansion  and  farm  attached,  free  of  rent, 
until  her  dower  is  assigned.  In  Alabama,  a  wife  having  a  separate 
estate  takes  only  so  much  for  dower  as  will  give  her  in  the  whole  a 
child's  portion. (4) 

9.  Where  the  statute  law  provides  a  substitute  for  the  right  of  dow- 
er, it  is  not  to  be  regarded  as  creating  a  new  interest,  but  as  declaratory 
or  in  affirmance  of  the  common  law. (5) 

10.  It  is  said,  that  the  idea  of  dower  is  derived  from  the  Germans, 
and  was  familiar  to  the  Saxons  when  they^  became  established  in  Eng- 
land. Dower  then  consisted  of  one  moiety  of  the  husband's  property, 
held  for  life,  and  liable  to  forfeiture  upon  breach  of  chastity,  or  a  second 
marriage.  Afterwards,  by  the  charter  of  Hen.  1,  the  condition  of  for- 
feiture was  dispensed  with,  except  where  there  was  issue.  In  the  reign 
of  Hen.  2,  a  wife  was  endowed  by  her  husband  at  the  time  of  marriage 
of  one-third  of  the  lands  which  he  then  held.  By  the  charter  of  1217 
and  1224,  dower  was  established  as  one-third  part  of  all  lands  held  by 
the  husband  during  his  life,  unless  a  smaller  portion  had  been  assigned 
at  the  church  door.{6){b) 

11.  The  only  kind  of  dower  known  in  practice  in  this  country  is 
,that  estate,  which,  according  to  the  above  definition,  (sec.  1,)  the  law 

confers  upon  a  wife  after  her  husband's  death  ;  or  dower  at  common 
law.  _  The  statute  laws  of  Vermont,  Connecticut,  New  Hampshire, 
Michigan  and  Maine,  refer  to  provisions  made  for  the  wife  before  mar- 
riage, under  the  name  of  dower,  undoubtedly  intending  thereby  a 
jointure,  which  will  be  considered  herea{ler.(7) 

(1)  Anth.  Sliep.  587-9. 

(2)  AnLli.  !<liep.  607. 

(3)  Misso.    St.    228;    McLaughlia   v.    Mc- 
Laughlin, Bennett,  (Mis.)  242. 

(4)  Menitee  v.  Menifee,  3  Eng.  9;  Ala.  Sts. 

(5)  Brown  v.  Adams,  2  Wiiart.  192. 


(6)  1  Cruise,  118.  See  2  Bl.  Com.  102; 
Doe  V.  Gwinnell,  1  Ad.  &  El.  N.  S.  682. 

(7)  Mass.  Rev.  St.  409;  Iowa  Sts.  1852, 
97;  Anth.  Sliep.  21,  100;  Mich.  L.  30;  1 
Smith's  St.  158:  McMahan  v.  Kimball,  3 
Blackf.  6. 


(a)  See  ante,  p.  94. 

{b)  Dower  ad  ostium  ecclesioe,  and  dower  ex  assensu  patris,  are  both  expressly  abolished 
by  Stat.  3  &  4  Wm.  4,  oh.  105,  sec.  13 ;   1  Steph.  Comm.  253. 


96 


DOWER.     NATURE  AND 


[CHAP.  VIII. 


12.  While,  as  has  been  already  remarked,  (ch.  6,  s.  1,)  curtesy  is  an 
estate  of  mere  positive  institution,  dower  is  held  to  have  a  strong  moral 
as  well  as  legal  foundation.  The  wife,  by  marriage,  loses  most  of  her 
rights  of  property,  and  would  in  general  be  wholly  destitute  after  the 
husband's  death,  were  not  some  provision  made  for  her  from  his  real 
estate.  It  is  said,  moreover,  that  in  ancient  times  the  personal  estates 
of  tlje  richest  were  very  inconsiderable,  and  the  husband  could  not 
give  his  wife  anything  during  his  life,  or  after  his  death,  both  trusts 
and  devises  being  then  unknown. (1) 

13.  For  these  reasons,  a  dowress  is  in  the  care  of  the  law  and  a 
favorite  of  the  law.(2)  Magna  Charta{S)  provides,  that  a  widow  shall 
forthwith,  and  without  any  difficulty,  have  her  marriage  and  her  in- 
heritance ;  nor  shall  she  give  anything  for  her  dower  or  her  marriage, 
or  her  inheritance,  which  her  husband  and  she  held  at  the  day  of  his 
death.  At  common  law,  a  dowress  enjoyed  the  privilege  of  exemption 
from  tolls  and  taxes.(4)(a)  It  is  said,  there-  be  three  thmgs  flivored  in 
law — life,  liberty  and  dower  ;(5)  that  dower  is  a  legal,  an  equitable  and 
a  moral  right,  favored  in  a  high  degree  b}'  law,  and  next  to  life  and 
liberty  held  sacred.(6) 

14.  As  a  mark  of  peculiar  favor  to  the  tenant  in  dowser,  although 
damages  were  not  generally  allowed  in  real  actions,  they  were  given 
to  her.  Particular  relief  was  also  provided  for  her  quarantine  (a  term 
hereafter  to  be  explained.  See  chap.  11.)  By  the  statute  of  Merton, 
(20  Hen.  8,  c.  1,)  deforcers  of  dower  were  to  be  in  mercy,  or  fined  at 
the  pleasure  of  the  king.  Where  to  a  suit  for  dower  the  defendant 
pleaded  a  false  plea,  the  widow  recovered  damages  from  the  husband's 
death,  though  she  had  been  always  in  receipt  of  one-half  the  profits  ; 
and  the  rules  of  pleading  are  construed  liberally  in  her  favor.(7) 

15.  The  celebrated  Ordinance  for  government  of  the  North  West 
Territory  expressly  secures  the  right  of  dower. 

16.  It  is  said,  however,  that  the  object  of  dower  is  not  to  enrich  the 
widow,  to  the  detriment  of  creditors  and  impoverishment  of  the  rest  of 
a  man's  family,  but  to  give  an  equal  third  part  in  value,  for  the  suste- 
nance of  the  wife  and  the  nurture  and  education  of  younger  children. 
Nor  does  the  law  give  her  any  preference  over  heirs  and  devisees.(8) 

17.  There  are  three  circumstances  necessary  to  give  a  title  to  dower: 
viz.,  marriage,  seizin,  and  death  of  the  husband. 

18.  The  marriage  must  be  had  between  parties  legally  capable  of 
contracting  it,  and  duly  celebrated.  "  Ubi  nullum  matrimoiium,  ibi 
nidlum  dos.{d){b) 


{!)  Banks  v.  Sutton,  2  P.  Wms.  702 ; 
Curtis  V.  Curtis,  2  Bro.  Ch.  620-30-34; 
Moody  V  King,  2  Bing.  451-2  ;  Co.  Lit.  30 
b,  n.  8  ;  see  Ga.  St.  1845,  80. 

(2)  1  Story  on  Eq.  583;  Lasher  v.  Lasher, 
13  Barb.  106. 

(3)  Magn.  Char.  sec.  8  ;   6  Conn.  462. 

(4)  2  Bl.  Com.  138. 

(5)  Co.  Lit.  124  b. 


(6)  Kennedy  v.  Nedrow,  1  Dal.  417. 

(7)  Curtis  V.  Curtis,  2  Bro,  Cha.  620 ;  Go. 
Lit.  32  b,  33  a;  Smith  v.  Paysenger,  4  Con. 
S.  C.  59;  McDonald  v.  Aten,  1  McCook 
(Ohio,)  293. 

(8)  Hey  ward  i'.  Cuthbert,  2  Con.  S.  C.  628; 
7  J.  J.  Mar.  637. 

(9)  Co.  Lit.  33  a;   1  Cruise,  121. 


(a)  In  Tennessee,  (Stat.  1835-6,  p.  58,)  land  held  in  dower  is  expressly  made  taxable. 

(b)  Long  continued  cohabitation  and  general  reputation  are  prima  facie  evidence  of  the 
marriage.     Young  v.  Foster,  14  N.  H.  114;  see  Couert  v.  Hertzog,  4  Barr.  145. 

So,  long  cohabitation,  continued  until  the  death  of  the  alleged  husband,  the  woman's 


CHAP.  Viri.]  REQUISITES  OP  DOWER.  97 

19.  A  marriage  may  be  either  void  or  voidable ;  and  the  considera- 
tion, whether  it  is  the  one  or  the  other,  will  materiall}^  affect  the 
widow's  claim  of  dower.  In  general,  if  the  marriage  were  void,  there 
shall  be  no  dower.  Thus,  the  second  wife  of  a  man  who  has  a  former 
wife  living  has  no  dower,  though  the  first  wife  dies  before  the  husband.(a) 

20.  But,  although  the  marriage  were  contracted  beTorc  tlie  age  of 
consent,  which  at  common  law  is  fourteen  in  men  and  twelve  in 
women, (/y)  and  therefore  voidable  by  either  party — according  to  the 
maxim  '■^ consensus^  nan  concubitus  facit  matrimonium  f'' — yet,  if  at  the 
death  of  the  husband  the  wife  have  passed  the  age  of  nine  years,  she 
shall  have  her  dower.  The  marriage  is  accounted  "  legitimum  matri- 
monium  quoad  dolem,''^  though  for  other  purposes  only  ^^sponsalia  de 
future.''^     And,  if  at  the  time  of  marriage  the  wife  is  under  nine  years 

of  age,  and  before  she  reaches  that  age  the  husband  parts  with  the 
land  ;   she  shall  still  have  dower,  if  she  live  till  nine.(l) 

21.  A  voidable  marriage  can  be  avoided  only  during  the  life  of  the 
parties,  and  by  divorce.  "Hence,  if  in  case  of  such  marriage  the  husband 
die  before  any  divorce  is  obtained,  his  widow  shall  have  dower.(2) 

22.  In  England,  the  fact  of  marriage  is  ordinarily  tried,  not  by  jury, 
but  by  a  certificate  of  the  bishop,  the  sentence  of  the  Ecclesiastical 
Court  being  held  conclusive  upon  this  question.  Under  special  cir- 
cumstances, however,  this  mode  of  trial  is  not  adopted ;  and,  in  the 
United  States,  this  fact,  like  others,  is  tried  by  jury. (3) 

23.  The  English  law,  on  the  subject  of  "^marriage  and  divorce,  is 
materially  different  from  that  whicli  generally  prevails  in  the  United 
States.  In  England,  there  are  said  to  be  two  classes  of  disabilities  or 
impediments  to  marriage — civil  and  canonical  Of  the  former  class, 
are  prior  marriage,  want  of  age,  moral  ability  or  will;  and  probably 
a  neglect  of  the  particular  mode  of  celebration  prescribed  by  law.  Of 
the  latter,  are  consanguinity,  affinity  and  corporeal  infirmity.  Civil 
disabilities  render  the  contract  void  ab  initio,  without  divorce  ;  canoni- 
cal disabilities  render  it  only  voidable  by  divorce. 

(1)  Dyer,  .%9  a,  368  b;  Co.  Lit.  33  a,  n.  I  (3)  Robins  v.  Crutchley,  2  "Wil.  122; 
10;  Iliirgins  v.  Breen,  9  Mis.  497  ;  Donnelly  Iklerton  v.  Ilderton,  2  H.  Bl.  156  ;  4  Dane, 
V.  Domidlv,  8  B.  Men.  113,  673. 

(2;  Co.  Lit.  33  b.  I 

being  received  and  treated  as  liis  wife,  and  their  bringing  up  and  educating  a  family  of 
children  as  their  own.  Carter  v.  Parker,  28  Maine,  509.  The  presumption  arising  from 
cohabilaiion  may  be  rebutted,  by  evidence  of  a  permanent  separation  without  apparent 
cause,  ami  anotlior  marriage  of  one  party.  Weatherford  v.  Weatlierford,  20  Ala.  54S.  Evea 
reputation  lias  been  held  sufficient  proofot  marriage.     Trimble  v.  Trimble,  2  Carter,  76^. 

An  administrator's  deed  warranted  tiie  title,  "excepting  only  the  widow's  right  of  dower." 
Held,  the  pureiiascr  was  not  estopped  to  deny  the  marriage  of  tlie  intestate,  nor  the  legiti- 
macy of  his  children,  in  a  suit  by  ihem  for  the  land.    Stevenson  v.  McReary,  12  S.  &  M.  9. 

(«)  A  man,  having  a  wife  in  Maryland,  left  her  and  mitrried  again  in  Keiilucl<y.  Subse- 
quently liis  lirst  wife  died,  and  he  continued  to  live  and  coiiaUit  with  the  Kei.tucky  wife  for 
severMl  years,  and  recognize  her  as  such  until  liis  deatii.  Held,  the  court  would  presume 
a  marriage  in  fact  after  tiie  death  of  the  Maryland  wife,  and  give  dower  to  tiie  last  wife. 
Donnelly  v.  Donnelly,  8  B.  Mon.  113. 

Where  a  man  who  has  a  wife  living  fraudulently  marries  another  woman,  who  believes 
herselt  to  be  his  lawful  wife,  obtains  lier  properly  and  earnings,  and  invests  in  lamis  more 
than  the  value  of  her  dower,  if  she  had  been  entitled  thereto;  his  heirs  cannot  in  equity 
deprive  her  of  the  dower  estate  alter  it  has  been  allotted  to  her.     lb. 

(h)  In  Arkansas,  a  marriage  is  void  if  the  husband  is  under  seventeen,  or  the  wife  under 
fourteen  years  of  age.     Ark.  Kev.  St.  535. 

Vol.  I.  7 


98  DOTVER.     NATURE  AND  [CHAP.  VIII. 

24.  In  England,  a  divorce  a  vinculo  mairimordi  is  granted  only  for 
causes  which  existed  at  the  time  of  marriage,  or  canonical  disabilities. 
Hence,  the  marriage  being  avoided  as  originally  unlawful,  dower  is  as 
effectually  barred,  as  if  the  marriage  had  been  absolutely  void. 

2-3.  Adultery^  being  a  cause  arising  after  marriage,  is  there  a  ground 
for  divorce  a  mensa  et  ihoro.  Contrary  to  some  ancient  opinions,  this 
has  been  settled  not  to  be  a  bar  of  dower,  being  merely  a  separation  of 
the  parties,  and  not  a  dissolution  of  the  marriage.  The  same  is  true  of 
a  divorce  a  mensa  for  any  other  cause  than  adultery.(l) 

26.  In  the  United  States,  the  statute  law  often  allows  a  divorce,  for 
causes  which  in  England  render  the  marriage  void  ah  initio.  Thus,  in 
l^ew  Hampshire,  ISlew  Jersey,  Ohio,  Indiana,  Illinois,  Missouri  and 
Alabama,  on  account  of  a  prior  maniage.  Whether  such  provisions 
have  the  effect  to  convert  void  into  voidable  marriages,  so  that  dower 
will  not  be  barre^l  without  divorce,  may  perhaps  be  a  questionable 
point.  In  Pennsylvania,  on  the  other  hand,  a  marriage  within  the  pro- 
hibited degrees,  which  is  a  canonical  disability,  is  declared  void  to  all 
intents  and  purposes.{a)  So  in  New  Hampshire.  But  still  it  is  to  be 
dissolved  by  divorce,  and,  after  the  death  of  either  party,  its  validity  can- 
not be  disputed.  In  the  same  State — Pennsylvania — where  there  is  a 
divorce  and  separation,  or  decree  that  the  marriage  is  null  and  void; 
all  the  duties,  rights  and  claims,  accruing  to  either  party  in  pursuance 
of  the  marriage,  shall  cease.  In  this  sweeping  clause,  dower  is  of 
course  included.  In  New  Jersey,  Alabama  and  Mississippi,  a  marriage 
contracted  while  a  former  husband  or  wife  is  living,  is  declared  to  be 
"invalid  from  the  beginning,  and  absolutely  void,"  but  is  still  dis- 
solved by  divorce.  In  Arkansas,  New  York  and  Massachusetts,  a  pro- 
cess is  provided  for  declaring  void  a  marriage  which  was  void  at  its 
inception,  by  a  decree  of  nidlity  ;  though,  in  Massachusetts,  such  decree 
is  declared  to  be  unnecessary.  In  Kentucky,  the  same  process  is  ap- 
plied to  a  marriage  within  the  prohibited  degrees.  In  Vermont,  con- 
sanguinity or  a  prior -marriage  renders  the  marriage  absolutely  void.  A 
process  is  provided  for  annulling  a  doubtful  marriage,  for  non-age, 
idiocy,  &c.,  force  or  fraud,  or  impotency.  In  Delaware,  a  marriage 
may  be  annulled,  in  case  of  unlawful  consanguinity  or  affinity,  where 
one  of  the  parties  is  white,  and  the  other  a  negro  or  mulatto ;  in  case  of 
a  former  husband  or  wife  living;  or  of  insanity.  In  Maine,  where 
one  of  the  parties  was  insane,  the  marriage  is  void,  and  may  be  so 
decreed. (2) 


(1)  Rolle  Abr.  Dower,  13;  Co.  Lit.  33  b; 
Lady  Slovvell's  case,  Godb.  145;  Dame,  &c. 
V.  Wet-ks!,  Noy,  108. 


Rev.  L.  232-3;  Misso.  St.  225;  N.  H.  L. 
336;  Alab.  L.  252;  1  N.  J.  L.  667  :  Purd. 
213;   Verm.   Rev.   St.  322;    Dela.    Rev.  St. 


(2)    Walk.    229;  lud.    Rev.   L.  .213;    111.  '  238 ;  Keyes  ?;.  Keyes,  34  Maine,  553. 


(a)  In  North  Carolina,  where  the  parties  are  nearer  than  first  cousins.  N.  C.  St.  1842, 
142.  In  Wisconsin,  in  case  of  consanguinity,  &c.,  or  a  former  marriage,  the  marriage  is 
per  se  void.  Rev.  Sts.  393.  It  may  be  declared  null  from  the  time  of  such  declaration,  for 
want  of  age  or  understanding,  force  or  fraud,  if  there  have  been  no  subsequent  voluntary 
colia'.>itatii)n.  lb.  In  case  of  infancy  or  insanity,  cohabitation  after  tlie  impediment  is  re- 
moved renders  the  mnrriage  valid.  In  the  fbrmer  case,  the  other  party  cannot  avoid  the 
marriage;  nor  in  the  latter,  if  lie  had  knowledge  of  the  insanity.  lb.  394.  In  New  Hamp- 
shire, the  marriage  of  one  incapable  of  contracting  is  void.     True  v.  Ramsey,  1  Eost.  52. 


CHAP.  VIII.]  REQUISITES  OP  DOWER.  99 

27.  It  may  be  laid  down  as  the  gcncrul  rule  of  American  law,  that 
divorce  a  vincido  bars  dower.(a) 

28.  But  this  rule  is  not  universally  adopted. 

29.  In   New  York,(6)  Connecticut,  Oliio,  Michigan,  it  seems,  and 
Il]inois,(l)  dower  is  not  barred  by  divorce  for  the  fault  of  the  husband; 

(1)  N.  Y.  Rev.  St.  741;  Illin.  Rev,  L.  233;  Mich.  L.  138;  Dela.  St.   1832,   U9;  Swan, 
291 ;  Ark.  Rev.  St.  337. 


(a)  The  grounds  of  divorce  are  various  in  the  different  States.  The  plan  of  the  present 
work  does  not  require  a  complete  stfitemeiit  of  the  law  upon  ttiis  subject;  and  therefore 
some  later  statutes  may  liave  escaped  notice.  The  universal  tendency  is,  liowcver,  to  ex- 
tend and  not  restrict  the  grounds  of  divorce  ;  and  it  may  ho  assumed,  that  the  causes  stated 
are  still  recognized,  whatever  additional  ones  may  have  been  sanctioned  by  recent 
legislation. 

Ill  Maine,  by  recent  statutes,  (1847,  8  ;  1849,  104,)  a  divorce  a  vinculo  may  be  granted  in 
all  cases,  if  tliere  be  no  collusion,  wliere  the  court  tliink  it  reasonable  and  proper,  con- 
ducive to  domestic  harmonj-,  and  consistent  with  tlie  peace  and  morality  of  society.  In 
VirgHiia,  the  cause  was  formerly  in  tlie  discretion  of  the  Legislature,  wliich  alone  granted 
divorces.  But,  by  a  late  act,  tlie  causes  specified  are  natural  and  incural)le  impotency  at 
the  time  of  marriage;  bigamy;  or  any  cause  tor  which  tlie  marriage  would  be  annulled  by 
the  ecclesiastical  law.  In  South  Carolina,  it  is  said,  divorces  are  never  granted.  In  North 
Caroliiiii,  for  any  "just  and  reasonable  cause."  So.  formerly,  in  Indiana.  But,  by  a  late 
act,  tor  drunkenness,  neglect  to  provide  for  the  wife,  or  any  crime  punishable  by  hard  labor 
in  the  penitentiary.  The  statute  of  Indiana,  relating  to  dower  in  case  of  divorce,  does  not 
give  dower  in  land  alienated  by  the  husband  before  its  onactment.  Comly  v.  Strader, 
1  Smith,  75;  M-Catlerty u.  M'CaSerty,  8  Blackf.  218.  In  Georgia,  legal (p-ouwls,  and  adultery. 
In  New  Hampshire,  Ohio,  Illinois,  Missouri,  Arkansas,  former  marriage,  desertion,  (so  in 
Rhode  Island,  R.  I.  L.  1851,  796,)  adultery,  impotence,  cruelty,  drunkenness.  In  Ten- 
ncsee.  the  four  first-named  causes.  In  Pennsylvania,  New  Hampshire,  Mississippi  and 
Alabama,  the  five  first-named  causes;  in  Alabama,  abandonment  by  husband  or  wife  for 
three  years,  or  by  the  husband  for  any  period,  in  connection  with  adultery.  But,  in  Ala- 
bama, no  divorce  is  granted,  in  case  of  adultery  by  both  parties;  and  a  divorce  must  be 
sanctioned  by  two-thirds  of  the  Legislature.  In  Delaware,  adultery  of  the  wife,  or  impo- 
tence. In  Massachusetts,  impotence,  desertion  for  five^ears.  adultery;  the  party  guilty  of 
which  cannot  marry  again.  In  Kentucky,  adultery,  desertion,  cruelty.  In  Keiilueky, 
Massachusetts  and  New  Hampshire,  formingcoiinection  with  certain  religionists,  inconsistent 
with  the  marriage  rights.  In  Connecticut,  adultery,  absence  ami  frauduhat  contract,  mean- 
ing some  cause  which  makes  the  marriage  void  ah  initio.  In  Oliio,  New  Hampshire  and 
Massachusetts,  imprisonment.  In  Vermont,  adultery,  imprisonment  three  years,  intolera- 
ble severity,  three  years'  desertion,  seven  years'  absence,  and  a  neglect  to  support  the  wife. 
In  Ohio,  fraudulent  contract,  gross  neglect  of  duty.  In  Missouri  and  Kentucky,  conviction 
of  crime.  In  Arkansas,  infamous  crime.  In  Alabama  and  Mississippi,  consanguinity.  In 
Michigan  and  New  York,  (it  seems,)  adultery  only.  In  Tennessee,  pregnancy  with  a  child 
of  color  at  the  time  of  marriage.  In  Alabama,  pregnancy,  without  notice  to  the  husband, 
at  the  time  of  marriage.  In  Tennessee,  the  wife  of  one  adjudged  insane,  becomes  a  feme 
sole,  but  cannot  marry  again.  In  Pennsylvania,  lunacy  of  the  wife  is  ground  of  divorce, 
on  applicati(m  of  her  friends.  In  New  Hampshire,  treatment  endangering  health  or  reason. 
In  the  same  State,  the  cause  must  contiinae  to  e.xist,  except  in  case  of  adultery.  In  Mary- 
land, a  divorce  is  granted  for  impotency  at  the  marriage,  any  cause  which  makes  the  mar- 
riage void  ab  initio,  adultery,  abandonment  for  five  years.  Alab.  L.  252-5  ;  Clay,  1G9,  70, 
71.  72  ;  4  Grill".  671  ;  Walk.  230,  326,  228  ;  Swan,  291  ;  4  Kent,  53  ;  Ma.ss.  Rev.  St.  480, 
484;  St.  1841,  189;  1850,  33G.  See  St.  1843,  264;  Brett  v.  Brett.  5  Mot.  233;  2  N.  Y. 
Rev.  St.  140;  Conn.  St.  1G2;  Dutt.  8;  Ind.  Rev.  L.  213;  Rev.  St.  242;  St.  1836,  69;  1 
N.  C.  Rev.  St.  239;  3  Griff.  363,  446,  4,  865,  799  ;  Purd.  212  ;  Penn.  St.  1843,  235;  Illin. 
Rev.  L.  233;  Mis.so.  St.  226;  N.  H.  L  336;  Rev.  St.  293;  N.  H.  St.  1849.  c.  740;  Dela. 
Rev.  Sts.  238;  1  Ky.  Rev.  L.  122-4;  2,  1157  ;  Mich.  L.  138;  Mich.  St.  1843,  7;  Tenn.  St 
1835-6,  166;  1839-40,  90;  4  Shepl.  479;  Me.  St.  1844,  105;  Md.  L.  1841-2,  ch.  262; 
Miss.  L.  1840,  125;  Verm.  Rev.  St.  324.  In  Iowa,  a  divorce  granted  by  the  territorial 
legislature,  if  it  does  not  appear  to  have  been  for  causes  over  which  the  district  courts  had 
jurisdiction,  is  good  ;  and  is  a  bar  to  dower  in  the  same  manner  as  if  granted  by  the  court 
Levins  v  Slealor,  2  Greene,  604.  In  Wisconsin,  imprisonment  for  life  per  se  dissolves  the  mar- 
riage. Grounds  of  divorce  are  adulterj'.  impotence,  imprisonment  for  three  years,  desertion, 
cruelt}',  into.\ic.ition  of  the  wife,  drunkenness,  neglect  to  support,  conduct  rendering  a  resi- 
dence with  the  husband  unsafe  or  improper.     Wise.  Rev.  Sts.  394-5. 

{h)  But  see  Wait  v.  Wait,  4  Barb.  192. 


100  DOWER.     NATURE  AND  [CHAP.  Till. 

but  it  is  barred,  as  also  in  Arkansas  and  Delaware,  by  a  divorce  for 
the  wife's  own  fault,  or,  in  Illinois,  on  the  ground  that  the  marriage 
was  originally  void.(tt)  Ordinarily,  the  distinction  made  in  favor  of 
the  wife,  where  the  divorce  is  granted  for  the  fault  of  the  husband,  is, 
that  a  provision  is  made  for  her,  distinct  from  dower,  either  under  that 
name  or  in  some  other  mode.  But  dower,  as  such,  is  barred.  In  Mas- 
sachusetts,(l)  where  a  man  and  woman  are  divorced  for  the  cause  of 
adultery  committed  by  him,  or  on  account  of  his  being  sentenced  to 
confinement  to  hard  labor,  the  wife  has  her  dower.  In  Maine,  where 
the  divorce  is  for  the  husband's  fault.(i)  So  in  Connecticut,  unless 
some  part  of  the  husband's  estate  has  bc-en  assigned  to  her.  In  Ken- 
tucky {by  the  Revised  Laws)  and  Alabama,  neither  part}^  can,  by 
divorce,  be  divested  of  a  title  to  real  estate  ;  but,  in  Kentucky,  by  a 
late  statute,  a  divorce  for  the  husband's  fault  gives  the  wife  the  same 
rights  as  if  he  were  dead.  In  Wisconsin,  where  a  divorce  is  had  for 
imprisonment  or  adultery  by  the  husband,  the  wife  has  dower.  In 
New  Hampshire,  where  the  wife  of  one  not  a  citizen,  by  residence  in 
the  State,  gains  the  right  of  acquiring  and  holding  real  estate,  and  is 
divorced  ;  sh  ■  retains  such  property,  unless  it  appear  from  other  evi- 
dence than  the  divorce,  that  she  was  guilty  of  misconduct.(2) 

30.  In  Connecticut,  a  sum  in  gross  paid  to  the  wife  upon  divorce,  is 
called  d'/icer. 

31.  Although,  in  England,  a  divorce  for  adultery  does  not  bar  dower, 
jet,  by  statute,  Westminster  II.  c.  34,  if  a  wife  willinglj^  leaves  her 
husband  and  continues  with  an  adulterer,  she  shall  be  barred  of  her 
dower,  if  she  be  convicted  thereupon, (c)  except  her  husband  willingly, 
and  without  coercion  of  the  church,  reconcile  her  and  suffer  her  to  dwell 
with  him.(ci?)  The  burden  of  proof  is  upon  the  party  making  this  de- 
fence to  a  suit  for  dower.(3) 

(1)  Mass.  Rev.  St.  483,  617.  See  Smith,  Shepl.  39.  Where 'the  wife  married  again 
V.  Smitli,  13  Mass.  231.  ,  |  within  three  years  after  the  husband's  leaving 

(2)  1  Ky.  Rev  L.  124;  Ky.  St.  1836-7,  home,  but  after  it  was  reputed  in  the  family 
324;  Alab.  L.  256;  X.  H.  Rev.  St.  296;  Me.  that  he  was  dead;  held,  not  sufficient  proof 
lb.  608  ;  Conn.  St.  188  ;  Wis.  Rev.  St.  397.      of  adultery  to  bar  dower,     lb. 

(3)  Co.  Liu.   32  b;   Cochrane  v.    Libby,  5 


(a)  In  Ohiof  ni  case  of  aggression  by  the  wife,  dower  is  barred  in  lands  owned  at  or  after 
the  filinf):  of  the  petition.  Swan,  291.  In  Indiana,  there  shall  be  a  fair  division  of  prop- 
erty, but  110  liile  to  land  shall  be  divested.  Except  in  case  of  adultery  by  the  wife,  ille- 
gality in  the  murriage,  or  allowance  of  alimony  expressly  in  lieu  of  dower;  dower  is  not 
barred.  Rev.  St  244.  Where,  before  tiie  statute  of  1843,  the  husband  conveyed  away  hia 
land,  and  a  divorce  was  decreed  for  misconduct;  held,  tlie  wife  should  not  have  dower. 
Coml}'  V  Str:iiltr.  1  Cart.  134.  Wiiere  in  a  case  of  cruelty  alimony  was  allowed  upon 
divorce  in  lieu  of  (lower;  licld.  dower  should  be  decreed.  Russell  v.  Russell.  lb.  510. 
There  is  no  dower  in  case  of  divorce  for  the  misconduct  of  both  parties.  Cuniiingiiam  v. 
runiiitigham,  2  Cart.  233.  In  Michigan,  upon  a  divorce  for  adultery  of  the  husband,  the 
wife  has  dower.     Rev.  St.  340. 

(6i  A  linsl)!it:d  sold  land  in  1823,  in  which  his  wife  did  not  release  her  dower.  In  1842, 
the  wife  obtained  a  divorce  on  the  }>rouiid  of  desertion,  under  the  statute  of  1828,  which 
provides,  that  a  wife  obtaining  a  divorce  for  that  cause  shall  have  dower  as  if  her  husband 
was  dead.  Ili-ld,  she  was  not  entitled  to  dower  in  tlie  land  sold;  as  the  statute  could  not, 
constituli'Mially,  have  a  retrospective  effect.     Given  v.  Marr,  27  Maine,  212. 

(c)  In  Enghmd,  lije  d  clesiastical  court  alone  has  jurisdiction  of  adultery.  Perhaps, 
there(()re.  >o;.victinn  may  there  be  requisite  to  bar  dower.  But  in  the  United  States  the  fact 
must  be  tried  colhterally,  if  at  all,  in  the  suit  for  dower. 

(d)  All  which  (.says  L'trd  Coke)  is  comprehended  shortly  in  two  hexameters. 

Sponte  virurn  mulier  fugiens,  et  adultera  facta, 
Dote  sua  careat,  nisi  sponsi  sponte  retracta. 
See  Lcconiptev.  Wash,  9  Mis.  551. 


CHAP.  VIII.]  REQUISITES  OF  DOWER.  101 

32.  The  same  consequence  follows,  though  the  wife  were  originally 
taken  away  against  her  will,  if  slie  afterwards  willingly  remain  with 
the  adulterer.  So  if  she  be  with  him  criminally,  without  remaining.; 
or  once  remain  with  him,  and  he  then  detain  her  against  her  will  ;  or 
if  he  turn  her  away.  So,  if  with  her  husband's  consent  she  goes  away 
with  another  man,  who  afterward  has  criminal  coimectiDn  with  her;  or 
if  she  refuses  to  accompany  her  husband,  on  account  of  objections  from 
her  parents,  and  reports  of  his  marriage  to  another  woman ;  or  refuses 
to  return  to  him,  having  been  driven  away  by  cruelty.  It  i.s  sufficient 
that  she  is  in  an  open  state  of  adultery,  whether  she  live  in  the  same 
house  with,  or  be  formally  married  to,  the  adulterer  or  not.  And  it 
has  been  held  immaterial  with  whom  the  adultery  is  committed, 
or  whether  it  be  before  or  after  she  leaves.  But  merely  Uuing  in 
aduUery,  without  elopement^  which  means  a  freedom  from  the  liushand^s 
control,  is  no  bar  of  dower.  The  circumstances  of  the  elopement  are 
immaterial. (1) 

33.  A  man  by  deed  granted  his  wife  to  anothcr,(a)  with  whom  she 
eloped  and  lived  adulterously,  and  after  her  first  husband's  death  intcr- 
marrietl.  Held,  the  deed  was  void  as  a  grant  or  a  license;  that  no 
averment  -was  admissible,  ^^  quod  non  fait  adidterium"  and  that  the  wife 
was  barred  of  dower,  notwithstanding  a  purgation  of  adultery  in  the 
ecclesiastical  court.  But  where  the  friends  of  a'husband  removed  him 
from  his  wife,  published  that  he  was  dead,  and  persuaded  her  to  marry 
another,  and  release  all  her  rights  under  the  first  marriage ;  held,  she 
did  not  leave  her  husband  spunte,  and  therefore  was  not  barred  of  her 
dowor.(2) 

34:.  In  Connecticut,  a  woman  has  dower  if  living  with  her  husband 
at  his  death,  or  absent  by  his  consent  or  default,  or  inevitable  accident. 
And  where  the  husband  was  a  naturalized  foreigner,  and  his  wife  had 
always  lived  abroad,  she  was  barred  of  her  dower  upon  the  principle 
above  stated.     In  Maryland,  conviction  of  bigamy  bars  dower.(3) 

35.  In  England,  the  reconciliation,  which  will  avoid  the  effect  of 
elopement,  must  be,  not  by  coercion  of  the  church,  (a  proceeding  un- 
known to  our  laws,)  but  voluntary  on  the  part  of  the  husband.  And 
the  better  opinion  seems  to  be,  that  cohabitation  subsequent  to  the  elope- 
ment— as,  for  instance,  the  parties  sleeping  together  at  several  times 
and  places,  although  they  do  not  permanently  occupy  the  same  house — 
is  sufficient  proof  of  reconciliation. (4) 

36.  Reconciliation  has  a  retrospective  effect  upon  the  rights  of  the 
wife.  Thus,  if  the  husband  purchase  and  aliene  lands  during  the 
elopement,  she  shall  still  have  lier  dower  therein. (5) 

37.  The  old  English  statute  upon  this  subject  has  been  generally 
adopted  in  this  country,  and  in  the  states  of  Virginia,  Nortli  Carolina, 
Delaware,  New  Jersey,  Illinois,  Missouri(6)  and  Indiana,  expressly  or 


(1)  ITetheriiip;ton  v.  Grnliam,  6  Binp.  13.'> ; 
St-egall  V.  Stetrall,  2  Brock.  256  ;  Bell  v.  Neely, 
1  Bai.  312  :  Coj^swell  v.  Tihbctts,  3  N.  II.  41 ; 
Walters  v.  Jordan,  13  Ired.  3G1. 

(2)  Co.  Lit.  32  a,  n.  10;  Green  v.  Harvev, 
1  Rolle's  Abr.  680. 


(3)  Dut  53  ;  Sistare  v.  Sistare,  2  Root,  468  ; 
Md.  L.  579. 

(4)  Ha  worth  v.  Herbert,  Dyer,  106. 

(5)  Co.  Lit.  33  a,  n.  8. 


(a)  "  Coiiecs.«io  mirahilis  et  inaudita." — Coke. 

(6)  The  Eiijrlish  .statute  was  never  in  force  in  this  State,  until  the  act  of  1825.     Lecompte 
V.  Wash,  9  Mis.  551. 


102  DOWER.     NATURE  AND  [CHAP.  VIII. 

substantially  re-enacted.  But,  in  New  York,  by  the  Eevised  Statutes, 
there  must  be  a  divorce  for  misconduct,  or  a  conviction  of  adultery, 
upon  a  bill  in  Chancery  by  the  husband,  to  bar  dower.(l)(a) 

88.  To  give  a  title  to  dower,  either  at  law  or  in  equity,  the  hus- 
band must  have  been  seized  of  the  lands.(i) 

89,  But  a  seizin  in  law  is  sufficient;  upon  the  ground  that  the  husband 
alone  has  power  to  obtain  actual  possession  during  coverture,  and  there- 
fore a  different  rule  would  enable  him  at  pleasure  to  debar  his  wife 
from  her  dower.(2) 

40.  Conveyance,  by  an  absolute  deed,  but  with  a  verbal  agreement 
to  reconvey,  upon  repayment  of  certain  money  loaned.  The  grantee 
uever  entered,  nor  claimed  possession.  Held,  his  wife  was  entitled  to 
dower,  a  seizin  in  law  being  sufficient  for  that  purpose.(8) 

41.  So,  where  an  heir  dies  before  entry  upon  the  land  descended  to 
him,  or  where  a  stranger  enters  by  abatement ;  the  widow  of  the  heir 
shall  still  have  dower.  But  if  the  heir  married  after  the  abatement, 
and  died  without  taking  possession  ;  his  widow  shall  not  have  dower, 

(1)  Stearns,  310;  1  Swift,  86;  4  Dane,  i  Foy  «.  Foy,  13  Ired.  90;  Walters  i'.  Jordan, 
672-6:    4  Kent,   52;    1  Virg.  Rev.  C.  171;    ib.  361. 

Code,  474;  1  N.  J.  R.  C.  400  ;*  1  N.  C.  Rev.        (2)  Co.  Lit.  31  a;    Perk.  366;  Dennis  v. 
St.  015;  Ind.  Rev.  L.  211;  111.  do.  238;  Misso.    Dennis,  7  Blackf.  572. 
St.  229  ;*  Dela.  St.  1829,  165;  Rev.  St.  291 ;  '      (3)  Atwood  v.  Atwood,  22  Pick.  283. 

*  In  this  statute  the  old  term  "  ravisher"  is  used. 


(a)  So,  also,  though  before  1830,  when  the  Revised  Code  was  enacted,  the  wife  long  lived 
in  open  ndultery,  separate  from  the  husband;  altho\igh,  if  he  had  died  prior  to  1830,  she 
would  have  been  barred  of  dower  under  the  act  of  1787.  Reynolds  v.  Reynolds,  24  Wend. 
193.  So,  wJiere  the  parties  were  married  in  1810,  the  wife  immediately  deserted  her  hus- 
band, and  ever  afterwards  lived  in  adultery;  and  the  husband  died  since  the  Revised  Stat- 
utes took  effect.  Cooper  v.  Whitney,  3  Hill,  95.  In  Oiiio,  a  divorce  in  another  State,  for 
wilful  abandonment  of  tlie  wife  by  the  husband  does  not  bar  dower  in  lands  lying  in  Ohio. 
Mansfield  v.  M'lutyre,  1  Wile.  27.  In  Alabama,  a  liusband  and  wifu  having  separated,  the 
husband  went  to  another  state,  married  again,  and  had  children.  The  woman  also  became 
motiier  of  illegitimate  children.  Forty  years  after  the  first  marriage,  the  husliand  convc-yed 
in  trust  for  the  second  wife  and  children.  Upon  his  death,  the  nr.=^t  wife  applies  for  dower. 
Held,  it  should  not  be  allowed.     Ford  v.  Ford,  4  Ala.  N.  S.  142. 

(6)  The  phrase  beneficial  seizin  is  sometimes  used.  Oldham  v.  Sale,  1  B.  Monr.  77.  See 
Norllicut  i;.  Whipp,  12.  B.  Mon.  65.  The  owner  of  the  inheritance  in  land  is  "possessed" 
of  it  for  the  purpose  of  dower  and  curtesy.     Weir  v.  Tate,  4  Ired.  Eq.  264. 

Where  a  deed  had  been  delivered  to  the  husband,  but  abstracted  from  him  before  regis- 
tration;  held,  there  could  be  no  dower  at  law,  but  the  widow  must  resort  to  a  court  of 
equity.  Tyson  v.  Harrington,  6  Ired.  Equ.  329;  ace.  Thomas  v.  Thomas,  10  Ired.  123.  In 
a  declaration  in  dower,  it  is  umiecessary  lo  aver  the  possession  o(  i\\Q  husband.  But,  by  the 
general  rules  of  pleading,  it  is  necessary  to  show  his  seizin,  which  may  be  done  by  implica- 
tion from  the  form  of  tlie  declaration.  Fox  worth  v.  White,  5  Strobh.  113.  In  Teimessee, 
the  widuw  is  not  dowable  of  land's  which  iier  deceased  husband  had  conveyed  by  mortgage, 
for  he  did  not  die  seized  and  possessed  of  them.  Melver  v.  Cherry,  8  Humph.  713.  On  a 
petition  for  dower,  althougli  tlie  widow  will  not  be  held  to  strict  proof  of  title  in  the  hus- 
band, to  make  out  &  prima  facie  right,  yet,  upon  a  plea  of  non  seizin,  she  must  either  show 
title  in  the  husband,  actual  possession,  or  that  the  defendant  holds  under  the  husband. 
Gentry  v.  Woodson,  10  Mis.  224. 

It  has  been  held,  that,  aliliough  the  husband  were  not  seized  during  coverture,  yet,  if  he 
had  conveyed  the  land  with  an  agreement,  that  the  rights  of  those  claiming  under  him  after 
his  death  should  be  saved  ;  his  widow  shall  have  dower.  Thus,  a  grantor  gave  an  abso- 
lute deed  of  real  estate,  and  took  from  the  grantee,  at  the  same  time,  an  acknowledgment 
that  he  held  the  land  charged  with  the  settlement  of  the  just  debts  of  the  grantor.  Held, 
the  widow  of  the  grantor,  who  had  intermarried  with  him  since  the  deed,  was  entitled  to 
dower.     Doe  v.  Bernard,  9  S.  &  M.  319. 


CHAP.  VIII.] 


REQUISITES  OF  DOWER. 


103 


because  during  the  coverture  he  bad  no  seizin  in  law.(l)  So  the  widow 
of  an  heir  has  no  right  of"  dower,  in  Land  sold  by  the  executor  under  a 
power  in  the  will  of  the  ancestor.(2) 

42.  So,  where  the  husband  had  only  a  remainder  or  reversion  ex- 
pectant upon  a  freehold,  there  shall  be  no  dower,(3)(a) 

43.  If  a  man  leases  for  life,  reserving  rent  to  him  and_bis'  heirs,  and 
then  marries  and  dies,  his  widow  shall  be  endowed  neitlierof  the  rever- 
sion nor  the  rent;  because  he  had  no  seizin  of  the  former,  and  only  a 
particular  estate,  not  an  inheritance,  in  the  latter.  The  same  rule  ap- 
plies, where  the  particular  estate  terminates  during  coverture,  either  by 
limitation  or  forfeiture,  but  the  husband  does  not  actually  enter.  But 
if  tiie  life  estate  cease  for  a  time,  though  afterwards  re-instated,  the 
widow  of  the  reversioner  has  dower,  on  account  of  the  temporary  seizin. 
Thus,  if  a  lessee  for  life  surrender  to  the  reversioner  on  condition,  and 
enter  for  condition  broken,  the  widow  of  the  latter  shall  be  endowed. (4) 

44.  A  conveys  to  B  in  fee,  and  B,  at  the  saine  time,  reconveys  to 
A  and  his  wife,  for  their  lives  and  that  of  the  survivor.  B  convej^s 
to  C,  subject  to  his  deed  to  A.  A  and  his  wife  and  C  jointly  occupy 
the  land.  A  dies,  then  C,  then  A's  wife.  C's  wife  remains  on  the 
land,  and  dower  is  assigned  her;  C's  administrator  having  previously 
sold  the  land  under  a  license  from  court  to  D,  E,  a  purchaser  from 
D,  brings  suit  for  the  land  ngainst  the  widow,  and  recovers.(5) 

45.  It  has  been  held  in  Pennsylvania,  that  there  is  no  dower  in  a 
remainder  expectant  upon  a  life  estate,  which  the  husband  has  aliened 
before  his  death.  Whether  without  such  alienation  there  would  be, 
qu.{lo) 

46.  But  where  the  lease  is  for  years  arid  not  for  life,  the  widow  is 
entitled  to  a  third  of  the  reversion,  and  a  third  of  the  rent,  if  any. 
And  this,  notwithstanding  a  release  from  the  wife  to  tiie  lessee  ;  which 
amounts  only  to  a  confirmation  of  the  lessee's  title.  If  no  rent  is  re- 
served, her  judgment  for  a  third  of  the  reversion  will  be  with  a  cessai 
execulio  duj-ing  the  term  ;  or  dower  will  be  as.<igiied,  with  a  proviso 
that  tlie  tenant  for  years  shall  not  be  disturbed. (TX*^) 

47.  Devise  to  executors  for  payment  of  debts,  then  to  the  testator's 
son  in  tail.  The  son  marries  and  dies  before  the  debts  are  paid.  Held, 
as  the  estate  of  the  executors  was  only  a  chattel  interest,  the  son  had 


(1)  Lit.  448;  Perk.  371;  Ih.  367;  Dun- 
ham V.  O.'ibonic,  1  Paige,  635  ;  Siierwood  v. 
Vanderhurjjli,  2  Hill,  .^03. 

(2)  Weir  v.  Tale.  4  Ired.  Eq  264. 

(3)  Blow  V.  Maynard,  2  Leigh.  30;  Robi- 
son  V.  Codmaii,  1  Sumner,  130;  Eldredge  v. 
Eorestal,  7  Mass.  253  ;  Dunliam  v.  Osborne, 
1  Paige.  634;  Otis  t'.  Parsliley,  ION.  H  403; 
Arnold  v.  Arnold,   8  B.  Mon.    202  ;  Weir  v. 


Tate,  4  Ired.  Et[.  264;  areen  v.  Putnam,  1 
Barb.  500. 

(4)  Co.  Lit.  32  a;  Perk.  sec.  366,  etseq.: 
Co.  Lit.  131  a,  n.  4. 

(5)  risk  V.  Eastman,  5  N.  H.  240. 

(6)  Shoemaker  v.  Walker,  2   S.  &  R.   554. 

(7)  Co.  Lit.  32  b ;  Whealley  v.  Best,  Cro. 
El.  564;  Willi,ams  v.  Cox,  3  Ed.  178  ;  Weir 
V.  Tate,  4  Ired.  Equ.  264. 


(a)  But  when  land  is  conveyed,  reserving  an  estate  therein  during  the  lives  of  the  grantor 
and  his  wiCe,  the  wife  not  being  party  to  the  deed;  the  estate  descends,  upon  the  dooeasa 
of  the  husband,  to  his  personal  representatives,  and  the  wife  is  entitled  to  dower  therein. 
Gorham  v.  Daniels,  23  Vt.  600. 

(h)  Wliere  a  rent  is  reserved,  the  judgment  for  dower  will  be  general,  but  tiie  exec^ulion 
special ;  and  the  sheriff  shall  not  oust  the  tenant,  but  merely  enter  and  demand  seizin  for 
the  widow. 


104 


DOWER.     NATURE  AND 


[CHAP.  "VIII. 


a  seizin,  which  entitled  his  widow  to  dower  after  payment  of  the 
debts.(l) 

48.  By  a  Massachusetts  colony  law  of  1641,  the  wife  was  allowed 
dower  of  a  reversion  or  reaiainder.  But  this  has  been  construed  to 
mean,  a  reversion,  &c.,  upon  an  estate  less  than  freehold. (2)  A  statute 
of  Maine  provides  for  dower  in  estates  in  possession,  remainder  and 
reversion.  In  Connecticut,  it  is  said,  a  reversion  after  a  freehold  is 
subject  to  dower.(3) 

49.  To  entitle  the  widow  to  dower,  the  husband  must  have  had  the 
freehold  and  inheritance  in  hitn  simid  et  sernel  Thus,  if  A  have  an 
estate  for  life,  remainder  to  B  for  life,  remainder  to  A  in  fee,  and  A 
die,  living  B,  A's  widow  shall  not  be  endowed.  The  same  rule  has 
been  adopted,  though  the  intervening  estate  is  a  mere  possibility.  Thus, 
where  A  is  a  tenant  for  life,  remainder  to  B  and  his  heirs  for  A's  life, 
remainder  to  the  heirs  male  of  A's  body,  A's  wife  shall  not  have 
dower.  And  the  prevailing  modern  doctrine  is,  that  the  interposition 
of  a  mere  contingent  estate  between  the  husband's  particular  estate  and 
his  inheritance — notwithstanding  a  union  sub  modo — is  sufficient  to  de- 
prive the  wife  of  her  dower.  Thus,  where  an  estate  is  limited  to  A 
and  B  for  their  lives,  and  after  their  deaths  to  the  heirs  of  B,  the 
wife  of  B  shall  not  have  dower.  The  learning  upon  this  subject  is 
said  to  be  abstruse  and  unprofitable.(4) 

50.  Upon  the  principle  above  stated  is  founded  the  rule,  that  a  widow 
is  not  dowable  of  lands  assigned  to  another  woman  in  dower — ^''  dos  de 
dote  peti  7ion  dehety  When  dower  is  assigned,  the  assignment  relates 
back  to  the  owner's  death,  and  the  heir  is  regarded  as  never  having 
been  seized  of  this  portion  of  the  land.  Thus,  it  is  no  bar  to  a  suit  for 
dower,  that  the  widow  of  an  earlier  owner  has  recovered  her  dower  in 
the  same  land  ;  although  the  plaintiff  may  recover  only  one-third  of 
the  remaining  two-thinis,  subject  to  a  contingent  right  of  dower  in  the 
other  third,  when  tlite  former  right  of  dower  ceases.(5) 

51.  A  grandfather  dies  seized  of  land,  from  which  his  widow  is  en- 
dowed. Then  the  father  dies,  leaving  a  widow.  The  widow  of  the 
father  shall  have  dower  only  in  two-thirds  of  the  land,  the  other  third 
being  in  the  father's  hands  a  reversion  expectant  upon  a  freehold,  viz., 
the  (lower  of  the  grandfather's  vvidow.(6) 

62.  But  in  New  York  it  has  been  held,  that  in  such  case  the  heir's 
widow  shall  have  dower,  in  the  land  assigned  to  the  widow  of  the  an- 
ce.-^tor,  after  the  death  of  the  latter.(7)(a)  " 

53.  If  the  grandfather  conveyed  to  the  father  before  his  death,  the 


(1)  8  Rep.  96  a ;  Hitchina  v.  Hitcliins,  2 
Venn.  404. 

(2)  4  DMne,  G04. 

(3)  1  Smith's  St.  170;  Reeve  Dom.  R.  57. 

(4)  Moore  v.  Kutj,  5  N.  H.  492  ;  Duii- 
comb  V.  Duucomb,  3  Lev.  437 ;  4  Kent, 
40.  n. 


(5)  4  Dane,  664;  Windham  v.  Portland,  4 
Mass.  388;  Mannin,^  v.  Laboree,  33  Maine, 
343.     But  see  ch.  12. 

(6)  Co.  Lit.  31  a.  b;  Reynolds  ?;.  Reynolds, 
5  Paige,  161  ;  Safford  v.  Safford,  7  Paige,  259. 

(7)  Bear  v.  Snyder,  11  Weiid.  592. 


(a)  It  would  seem,  that  in  making  this  decision,  the  court  overlooked  the  distinction  (laid 
down  in  ti)e  books  wliich  tiiey  cite,  and  noticed  in  sees.  51,  53)  between  the  ease  wiiere  the 
son  holds  by  purcha-ie,  and  that  in  which  he  holds  by  descent.  The  point  really  decided  is, 
that  the  hfir  is  seized  of  the  reversion  expectant  upon  the  widow's  dower,  whicn  is  a  depart- 
ure Injm  tile  common  law  rule.  The  decision  seems  directly  contradictory  to  5  Paige,  161. 
(Supra,  u.  6.) 


CHAP.  VIII.] 


REQUISITES  OF  DOWER. 


105 


widow  of  the  fatlier  would  have  dower  in  the  whole,  subject  to  the 
dower  of  the  grandfather's  widow  ;  bceause,  befoie  the  death  of  the 
latter,  the  flither  was  actually  seized. (1) 

54.  Judge  Eeeve  supposes  a  case,  where,  upon  this  })rinciple,  the 
widows  of  the  grantor  and  of  four  successive  purchasers,  respectively, 
claim  dower  in  the  same  laud. (2) 

55.  The  same  principle  applies,  where  the  land  Ira's  been  sold  on 
execution.  A  owns  land,  which  is  sold  on  execution  against  him  to 
B.  B  dies,  and  then  A.  B's  widow  has  dower  in  the  land,  subject 
to  the  dower  of  A's  widow. (3) 

56.  The  above-stated  rule  is  not  applicable,  unless  dower  has  been 
actually  assigned  to  the  first  widow. (4) 

57.  It  is  said  that  the  widow  of  a  devisee  may  recover  dower  in  the 
whole  land  devised,  the  widow  of  the  testator  having  never  made  any 
claim. (5)(a) 

58.  Upon  the  question,  whether  a  release  by  the  widotv  first  entitled 
gives  the  other  dower  in  the  tchole  land ;  where  two  widows  were  enti- 
tled to  dower  in  the  same  land,  and  the  one  having  the  prior  right  recov- 
ered judgment  for  her  dower,  but,  without  having  it  set  oft",  conveyed 
it  to  the  tenant ;  in  a  suit  by  the  other  widow  for  her  dower,  held,  she 
could  claim  it  in  only  two-thirds  of  the  land.  But  to  an  action  of 
dower,  a  prior  right  of  dower,  which  has  been  released  to  the  tenant 
without  being  enforced,  has  been  held  no  defence.(6)(6) 

59.  It  is  said,  that  if  the  widow  of  a  grantee  sue  the  grantee's  heir 
for  her  dower  in  the  whole  land,  pending  a  suit  against  him  by  the 
widow  of  the  grantor  for  her  dower ;  the  former  suit  shall  await  the 
judgn^ent  in  the  latter.(7)(c) 

60.  It  has  been  said,  that  an  instantaneous  seizin  is  sufficient  to  give 
dower;  and  a  case  is  mentioned,  where  a  father  and  son  were  hanged 
in  one  cart,  and,  as  the  son  appeared  to  survive  the  father  by  strug- 
gling the  longest,  the  son's  widow  was  endowed.(8) 

61.  A  purchaser  of  land  mortgaged  it  on  the  same  day  to  creditors 
of  the  vendor.     Held,  his  wife  should  have  dower.(9) 

62.  But  there  is  an  instantaneous  seizin  of  another  description,  which 
will  not  entitle,  the  widow  to  dower.  This  is  where  the  same  act,  which 
gives  the  husband  an  estate,  also  passes  it  out  of  him,  or  where  he  is  a 


(1)  Co.  Lit.  31  a,  b;  Geer  v.  Ilamblin,  1 
Greenl.  54,  n. 

(2)  Reeve's  Dom.  Rel.  58. 

(3)  Dunham  v.  Osborn,  1  Paige,  635. 

(4)  EJwood  V.  Klock,  13  Barb.  50. 

(5)  1  Cruise,  153;  liilcliiua  v.  Ililchins,  2 
Vern.  403. 

(6)  Leavittu.  Lamprey,  13  Pick.  382.  (But 


see  infra,  63.)     Atwood  v.  Atwood,  22  Pick. 
283 ;  Elwood  V.  Klock,  13  Barb.  50. 

(7)  Lit  54. 

(8)  2  Bl.  Com.  132;  Broughton  v.  Randall, 
Cro.  Kliz.  502 ;  Stanwood  v.  Dunning,  2 
Shepl.  290. 

(9)  McClure  v.  Harris,  12  B.  Mon.  261. 


(a)  Mr.  Cruise  thus  states  the  law.  But  the  rase  (2  Vern.  403)  which  lie  cites,  was  one 
where  llie  title  of  the  former  widow  was  disputed  on  the  ground  of  a  devise  to  her  in  satis- 
faction of  dower. 

(h)  Devise  to  the  testator's  wife  of  her  thirds  of  the  land  occupied  by  him,  and  of  the 
whole  tract  to  his  son,  who  occupied  with  him.  Held,  the  son  took  the  whole,  sulfject  to 
her  dower;  and,  if  not  assigned  in  the  son's  life,  his  widow  should  have  dower  in  the  whole, 
Robinson  v.  Miller,  2  B.  Monr.  287. 

(c)  But  Lord  Coke  says,  "  this  shaft  came  never  out  of  Littleton's  quiver  of  choice  ar- 
rowes." 


106 


DOWER.    NATURE  AND 


[CHAP.  VIIL 


mere  instrument  to  pass  the  estate.  Thus,  where  land  is  conveyed  to 
A  to  the  use  of  B,  A  has  but  an  instantaneous  seizin,  and  his  widow 
shall  not  have  dower.  So,  where  A  conveys  to  B,  and  B  at  the  same 
time  mortgages  back  to  A,  or  according  to  a  previous  agreement  mort- 
gages to  C ;  the  widow  of  B  shall  have  dower  only  in  the  equity  of 
redemption.  Otherwise,  where  the  reconveyance  is  subsequent  in 
time  to  the  original  deed  ;  or  where  the  mortgage,  made  with  the 
deed,  having  never  been  recorded,  is  surrendered  to  the  mortgagor, 
who  gives  a  new  note  and  mortgage,  in  which  the  wife  does  not  join. (1) 

62  a.  A  had  given  his  note  to  B,  for  a  tract  ot  land.  By  agreement, 
B  conveyed  the  land  to  C,  who,  therefor  at  the  same  time,  conveyed  a 
farm  to  A,  and  A  at  the  same  time  gave  a  mortgage  of  the  farm  to  B, 
as  security  for  said  note.  Held,  the  instantaneous  seizin  of  A  did  not 
entitle  his  wife  to  dower.(2) 

62  b.  And  where  the  conveyance  and  mortgage  are  acknowledged 
and  recorded  at  the  same  time,  although  the  mortgage  is  not  made  to 
the  vendor,  it  will  be  presumed  to  have  been  executed  for  the  purchase- 
money,  at  the  same  time  with  the  conveyance.  Such  case  is  not  within 
the  statute  of  New  York,  (1  Kev.  Sts.  7-iO,)  declaring  that  a  widow  shall 
be  dowable  of  lands  mortgaged  by  the  husband  before  marriage,  as 
against  all  persons  except  the  mortgagee  and  those  holding  under 
hmi.(3) 

68.  So,  where  it  was  a  condition  of  a  sale  of  land  to  the  husband, 
that  he  should  give  back  a  mortgage  of  the  land  to  secure  the  price, 
and  a  deed  was  made,  the  day  after  the  conveyance,  and  signed  by  the 
wife,  but  she  refused  privately  to  acknowledge  it ;  held,  she  could  not 
have  dower.  But  where  a  vendor  of  land,  having  a  lien  for  the  price, 
brings  a  suit  for  it,  recovers  judgment,  and  sells  the  land  upon  execu- 
tion ;  the  lien  is  extinguished,  and  the  widow  of  the  first  vendee  shall 
have  dower  against  the  execution  purchaser.(4)(a) 

64,  In  Virginia,  where  the  husband,  receiving  a  deed  of  land,  gave 
a  deed  of  trust  to  secure  the  price,  and  the  land  was  afterwards  sold  to 
raise  the  price,  it  was  left  a  doubtful  point  whether  the  widow  should 
have  dower,(5) 

65,  Where  a  man  before  marriage'  makes  a  conveyance  of  lands, 
which  is  never  acknowledsfcd  or  legally  recorded,  his  widow  shall  not 
have  dower,(6)  But  where  the  defendant  was  a  purchaser  under  a 
judgment  entered  on  the  same  day  with  the  marriage;  but  there  was 
no  evidence  which,  in  fact,  was  first,  the  marriage  or  the  entry  of  the 
judgment;  the  plaintiff  recovered  her  dower.(7) 

65  a.  In  an  action  of  dower,  proof  of  the  conveyance  of  the  premises 
to  the  husband,  by  deed  of  warranty,  and  of  his  convejdng  the  same  to 


(1)  Co.  Lit.  31b;  IX.  Y.  R.  S.  "740  ;  Ark. 
Rev.  St.  337 ;  Holbrook  v.  Finney,  4  Mass. 
566  ;  Clark  v.  Munroe,  14,  351  ;  1  Bay,  312  ; 
2  M'Cord,  54  ;  Aiicots  v.  Catherick,  Cro.  Jac. 
615;  Stanwood  v.  Dunniiio;,  14  Maine,  290; 
McCauley  v.  Grimes,  2  Gill  &  J.  318  ;  Eilliam 
V.  Moore,  4  Leigh,  30 ;  Mayburry  v.  Brien, 
15  Pet.  21 ;  Slierwood  v.  Vandenhurgli,  2  Hill, 
30 ;  Hobbs  v.  Harney,  4  Shepl.  80 ;  Bullard  v. 


Bowers,  1 0  N.  H.  500 ;  Nottingham  v.  Calvert, 
1  Smith,  399. 

(2)  Gammon  v.  Freeman,  31  ifaine,  243. 

(3)  Cunningham  v.  Knight,  1  Barb.  399. 

(4)  Bogue  V.  Rutledge,   1  Bay,  312;  Mc- 
Arthur  V.  Porter,  1  Ohio,  102. 

(5)  Moore  v.  Gilliam,  5  MnnT.  346. 

(6)  Blood  V.  Blood,  23  Pick.  80. 

(7)  Ingram  v.  Morris,  4  Harring.  111. 


(a)  Burnet,  J.,  dissented. 


OHAP.  VIII] 


REQUISITES  OF  DOWER. 


107 


another  person  during  the  covertm-e,  prima  facie  is  suflicient  to  prove 
the  seizin  of  the  hnsbi)nd,(l)  more  especially  with  the  aJditionul  proof 
o^ possession  by  the  husband  and  his  grantee.(2)(a)  • 

Q{].  It  has  been  laid  down,  that  where  a  widow  demands  dower  from 
one  claiming  under  her  husband,  he  cannot  dispute  the  husband's 
seizin. (3)(i)  But  this  rule  has  been  criticised,  and  tlic  cases  which 
have  been  supposed  to  establish  it  examined,  by  the  court  in  New 
Hampshire  and  elsewhere;  and  the  conclusion  is,  that,  although  there 
may  be  ca-ses,  where  the  tenant  is  technically  and  absolutely  estopped 
to  deny  the  seizin  of  tiie  husband,  under  whom  he  claims  ;  yet,  in  gene- 
ral, the  husband's  conveyance  is  only  prima  facie  evidence  of  such  a 
seizin  as  entitles  the  widow  to  dower,  and  the  defendant  may  contest 
this  point.  Thus,  the  tenant  may  defend,  upon  the  ground  that  the 
husbanil  had  only  a  remainder  after  a  freehold, (4)  or  a  leasehold 
interest,  though  he  conveyed  in  fee. 

67.  It  seems,  the  demandant  in  the  suit  for  dower  need  only  prove 
that  the  husband  was  the  reputed  and  ostensible  owner;  the  tenant 
must  then  show  a  better  title.     Thus,  A  took  possession  of  vacant  land 


(1)  Carter  r.  Parker,  28  Maine,  509. 

(2)  Wall  V.  Hill,  7  Dana,  174. 

(3)  Bancroft  v.  White,  1  Calnes,  185:  see 
Elliott  V  Stuart,  .3  Shepl.  IGO;  2  Hill,  302  ; 
Stevenson  v.  McReary,  12  S.  &  M.  9  ;  Finn 
V.  Sleight,  8  Barb.  401. 


(4)  Moore  v.  Esty,  5  N.  II.  492  :  Otis  v. 
Parsliley,  10,  403  ;  ace.  Sparrow  v.  Kin^rmau, 
1  Corast.  242  ;  Kingman?;.  Sparrow,  12  Biirb. 
201;  Gammon  v.  Freeman,  31  Maine,  243. 
See  Bell  v.  Twilijiht,  2  Foster,  (N.  H.,)  500 ; 
Crittenden  v.  Woodruff,  6  Eng.  82. 


(o)  The  demandant  cannot  rely,  except  as  secondary  evidence,  upon  recitals  in  the  deed, 
under  which  the  defendant  claims,  acknowledging  her  right  to  dower.  Jewell  v.  Harring- 
ton, 19  Wend.  471. 

In  an  action  of  dower,  the  husband's  seizin  is  established  by  proof  of  a  deed  to  him  ;  of  a 
deed  Irom  hini  with  covenants  of  general  warranty;  and  of  a  sirriilar  deed  from  his  grantee 
to  tiie  tenant,  though  his  deed  was  executed,  soon  after  a  judgment  in  his  favor  upon  a 
writ  of  entry  on  his  own  seizin,  and  before  he  had  paid  to  the  tenant  in  that  action  the 
amount  assessed  by  the  jury  for  betterments;  provided  the  value  of  the  betterments  was 
actually  paid  within  the  time  prescribed  by  statute.  The  covenants  of  warranty  estop  the 
tenant  from  denying  the  husband's  seizin.     Thorndike  v.  Spear,  31  Maine,  91. 

{b)  Thus,  where  two  grantors  conveyed  land  by  deed  of  warranty,  without  any  designation 
of  the  manner  in  which  it  was  held  by  them,  one  died,  and  his  widow  brought  her  action  of 
dower,  claiming  to  be  endowed  of  one-half  of  tiie  premises  ;  held,  the  grantee  was  estopped 
by  his  deed,  from  showing  that  the  living  grantor  was  seized  in  .severalty  of  a  much  greater 
proportion,  and  the  deceased  of  a  much  less  proportion,  than  an  undivided  moiety.  Stimp- 
8on  V.  Tliomastou  Bank,  28  Maine,  259. 

So,  in  a  suit  for  dower  against  one  who  entered  under  a  deed  from  the  husband's  grantee, 
the  defendant  has  been  held  estopped  to  deny  the  husband's  title,  or  to  aver,  that,  after  the 
purchase  of  the  land,  an  action  being  brought  against  him  by  the  true  owner,  he  bought  a 
true  and  permanent  title.  Browne  v.  Potter,  17  W^nd.  164:  see  Norwood  v.  Marrow,  4 
Dev.  &  B.  442.  So,  one  is  estopped  who  liolds  under  a  deed  from  tiio  widow,  as  executrix 
of  the  husband,  conveying  tiie  land  subject  to  dower.  Smith  v.  Ingalls,  1  Siiepl  284.  So, 
where  the  iiusband  was  in  possession,  and  an  execution  levied  upon  tlie  land,  under  which 
the  tenant  claims  title;  this  is  sufficient  proof  of  seizin  in  the  husband.  Cochrane  v.  Libby, 
5  Sliepl.  39;  see  Osterhout  v.  Shoemaker,  3  Hill,  513. 

Where,  to  a  .suit  for  dower,  the  defence  is  set  up,  tliat  the  defendant  was  not  seized,  and 
the  plaintiff  prevails;  this  judgment  is  conclusive  in  her  favor,  upon  a  subsequent  bill  in 
equity  for  mesne  profits.  Tellman  v.  Bowen,  8  Gill.  &  J.  383.  But  dower  will  not  be 
allowed  against  a  purchaser  from  the  husband  upon  a  doubtful  right.  Alsberry  v.  Hawkins, 
9  Dana,  181 ;  see  Davis  v.  Logan,  ib.  186. 

Upon  a  similar  principle  to  that  above  stated,  acceptance  of  dower  estops  a  widow  from 
disputing  her  husband's  title.  Perry  v  Calhoun,  8  Humph.  551.  So,  where  the  widow 
remains  in  possession  of  the  land,  she  is  estopped  to  deny  the  husband's  title;  even  though 
she  surrenders  to  one  chiiming  under  an  execution  prior  to  the  husband's  deed,  and  then 
resumes  possession  under  him.     Grady  v.  Baily,  13  Ired.  221. 


108 


DOWER.     NATURE,  ETC.,  OF  DOWER. 


[CHAP.  VIII. 


owned  by  the  State,  made  improvements,  and  occupied  fifteen  years. 
The  State  granted  the  land  to  B,  son  of  A,  after  A's  death,  reserving 
to  the  wife  »f  A  a  hfe  estate,  in  the  same  manner  she  would  have  been 
entitled  to  dower,  if  A  had  died  seized  in  his  own  right.  The  wife  of 
A  brings  an  action  for  her  dower.  Held,  A's  possession  was  evidence 
of  seizin,  and  threw  the  burden  of  disproving  it  upon  B  ;  that  A  was 
seized  against  everybody  but  the  State,  as  a  mortgagor  is  seized 
against  all  but  the  mortgagee;  and  that  B  had  nothing  to  set  up 
against  the  claim  of  dower  except  his  grant,  which  expressly  saved 
the  right  of  dower.     Judgment  for  the  plaintiff.(l) 

68.  The  last  circumstance  requisite  to  dower,  is  the  death  of  the  hus- 
band. This  renders  absolute  and  consuinmate,  an  interest  before  contin- 
gent, Vichoate  and  initiate.{2)  Whether  it  must  be  a  natural  death, 
seems  to  have  been  an  unsettled  point.  In  England,  the  prevailing 
opinion  is,  that  a  mere  cm7  death  is  insufficient.  Mr.  Dane  remarks, 
that  this  question  is  not  known  ever  to  have  been  started  in  this 
country,  or  the  existence  of  any  such-  thing  as  a  civil  death  contended 
for;  although  Quakers  and  others  have  been  banished,  and  many 
criminals  are  imprisoned  for  life:  but  that  in  New  York  it  has  been 
decided  that  they  are  dead  in  -law.  In  South  Carolina,  a  husband  ban- 
ished has  been  held  civillter  mortuus.{i){a) 

69.  A  natural  death,  however,  may  be  presumed  from  circumstances, 
or  proved,  lyrima  facie^  by  reputation  in  the  family,  and,  in  such  case, 
the  widow  unquestionably  has  the  same  right  to  dower,  as  if  the  death 
of  the  husband  were  positively  proved.  The  English  statute  (19  Cha. 
2,  c.  6)  provides  merely  for  the  taking  effect  of  remainders  and  rever- 
sions, expectant  upon  life  estates.  But  the  principle  of  the  statute  has 
been  extended  to  most  other  cases;  more  especially  to  those,  where 
the  title  to  land  is  concerned,  and  the  property  would  therefore  remain 
unimpaired,  if  the  party  should  prove  to  be  alive.  Thus,  where  a  hus- 
band had  been  more  than  seven  years  absent  from  the  State,  and  it 
was  reported  that  he  was  drowned  ;  held,  a  second  marriage  by  his 
wife  was  valid,  and  entitled  her  to  dower  or  a  distributive  share  from 
the  second  husband's  estate.(4) 

70.  A  and  B  cohabited  as  man  and  wife.  They  separated  in  1781, 
and  in  1783  B,  the  wife,  removed  from  the  State,  and  was  never  after- 
wards heard  of.  In  1781  A  married  again,  lived  with  his  second  wife 
thirty-eight  years,  and  died  leaving  children  by  her.  Held,  though 
the  second  marriage  was  void  at  its  inception,  yet  a  valid  subsequent 


(1)  Smith  V.  Paysenger,  4  Con.  S.  0.  62; 
KiiiKlit  V.  Mains,  3  Fairf.  41 ;  Reid  v.  Steven- 
son, 3  Rich.  66. 

(2)  Moore  v.  City,  &e.,  4  Sandf.  456;  Rid- 
dick  V.  Walsh,  15  Mis.  519. 

(3)  3  Mas.  368  ;  Sutliff  v.  Forney,  1  Cow. 
89;  Co.  Lit.  33   b,  132  b. ;  Jenk.  Cent.  Ca. 


4;  1  Cruise,  124;  4  Dane,  677.  See  Gregory 
V.  Paul,  15  Mass.  33;  Wright  v.  Wriglit,  2 
Desaus.  244. 

(4)  Woods  V.  Woods,  2  Bay,  476 ;  Coch- 
rane V.  Libby,  5  Shepl.  39.  See  Miller  v. 
Bates,  3  S.  and  R.  490. 


(a)  Under  the  Kentucky  statute  of  1802,  the  wife  of  one  convicted  offtlony  is  not  entitled 
to  dower,  as  in  case  of  his  decease.     Wooldridge  v.  Lucas,  7  B.  Mon.  49. 

The  estate  is  not  forfeited,  but  the  wife's  right  to  alimony,  and  the  right  of  the  children 
to  support,  and  of  tlie  creditors,  are  recognized;  and  the  right  of  the  ollbnder,  after  his  re- 
lease Irom  imprisonment,  to  what  has  not  been  disposed  of  for  eitlior  of  these  purposes,  is 
complete.     Nor  does  his  estate  descend  to  his  heirs,  but  remains  in  the  convict,     lb. 


CHAP.  IX.]  DOWER.     WHAT  PERSONS  ENDOWED,  ETC. 


109 


marriage  might  be  presumed,  from  tlie  eohabitalion  and  good  charac- 
ter of  the  parties,  anci  the  wife  was  allowed  (lower,(l)(a) 

71.   A  party  claiming  under  the  heirs  of  the  husband  cannot  deny 
his  death.(2)  " 


CHAPTER   IX. 

DOWER.      WHAT  PERSONS  MAY  BE  ENDOWED,  AND  IN  WHAT  THINGS. 


1.  Aliens. 

7.  Dower — in  what  tilings. 

8.  Things  incorporeal. 

9.  Minus  and  quarries. 

12.  Wild  lands. 

13.  State  of  enltivation — what. 

14.  Improvement  or  depreciation  by  heir 

or  purchaser. 
21.  Increase  or  diminution  of  valuo   from 

extrinsic  causes. 
23.  Land  appropriated  to  public  use. 


25.  Mill  and  fishery. 

26.  Annuities. 

27.  Lands  held  by  improvement,  &c. 

28.  Lands  contracted  for. 

31.  Slaves. 

32.  Estates  tail,  &c. 

35.  Estates  pour  autre  vie. 

36  Estates  lor  years. 

37.  Uses,  &'j. 

38.  Wrongful  estates. 


1.  With  respect  to  tlie  persons  who  may  take  an  estate  in  dower, 
the  only  personal  disability  seems  to.  be  that  of  aliens.  At  common 
law,  an  alien  cannot  liold  real  estate,  acquired  in  any  mode :  and  cannot 
even  take  it  by  act  of  law.  An  alien  woman  therefore  cannot  be  en- 
dowed. A  .statute  of  lien.  5  made  an  exception  in  favor  of  aliens 
married  to  Englishmen  under  a  license  of  the  king.  And  if  naturalized, 
an  alien,  in  general,  shall  have  dower  in  all  the  lands  of  which  the 
husband  was  seized  during  coverture.(3)  Decided  otherwise  in  New 
York  (4) 

2.  The  rights  and  powers  of  aliens,  as  to  real  estate,  will  be  con- 
sidered hereafter.(6)  In  those  States  where  they  are  authorized  to  hold 
lands,  of  course  they  are  entitled  to  dower.  But  in  some  of  the  other 
States,  a  special  exception  from  tjie  conmion  law  rule  has  been  made 
in  favor  of  alien  women  and  the  widows  of  aliens. 

3.  In  Massachusetts,  Connecticut,  Maine,  Arkansas,  AVisconsin,  Indi- 
ana, Michigan, (5)  alien  women  are  dowable;  except,  in  Massachusetts 


(1)  Jackson  v.  Claw,  18  John.  34G. 

(2)  Hitchcock  v.  Carpenter,  9  John   344. 

(3)  1  Cruise,  125;  2  Chit.  Black.  103,  n. 
23 ;  Buchanan  v.  Deshcn.  1  Harr.  &  G.  289; 
Aisberry  v.  Hawkins,  9  Dana,  1 77. 


(4)  Priest  v.  Camming?,  16  Wend.  617. 

(5)  Mass.  Rev.  St  411  ;  Conn.  Sis.  1848, 
47 ;  Me.  lb.  392  ;  Mich.  lb.  265 ;  Ark.  lb. 
337 ;  Wise.  lb.  335 ;  Ind.  lb.,  Descent,  sec.  43. 


(a)  In  Vermont,  where  a  husband  has  absconded,  his  wife  may  obtain  authority  to  dis- 
pose of  real  estate. 

{b)  See  Alien.  The  common  law  rule  ig  recognized  in  Kentucky.  Thus,  where  a  woman 
emigrated  with  her  husbnnd  to  Texas,  where  he  died,  and  she  returned  upon  a  visit;  held, 
she  had  expatriated  herself,  and  was  not  entitled  to  dower.     9  Dana  177. 

The  domicil  of  the  husband  does  not  nirect  the  right  of  dower.  Tims,  tlic  wife  of  one 
domiciled  in  Geor-ia  may  claim  dower,  in  all  lands  in  South  Carolina  of  which  ho  was  seized 
at  any  time  during  coverture.     Lnraar  v.  Scolt,  3  Strobli.  562. 

In  Wisconsin,  a  widow  out  of  the  State  may  claim  dower.     Rev.  Sts.  335. 


110 


DOWER.     WHAT  PERSONS  MAY  BE 


[CHAP.  IX. 


and  Maine,  of  land  convej'ed  or  levied  on  before  February  23,  1813. 
They  are  dovvable,  also,  in  New  Jersey,  and,  if  residents,  in  Mary- 
land.(l) 

4.  Ill  Maine,  the  alien  widow  of  a  citizen  is  said  to  be  dowable, 
without  the  exception  above  stated. (2) 

5.  In  New  York,  the  widows  of  aliens,  Avho  at  tbeir  death  were 
capable  of  holding  lands,  if  such  widows  are  inhabitants  of  the  State, 
shall  have  dower. (3)(a) 

6.  In  New  York,  the  alien  widow  of  a  citizen,  who  was  an  inhabi- 
tant of  the  State  when  the  act  of  1802  was  passed,  enabling  aliens  to 
hold  lands,  is  entitled  to  dower.(4)(6) 

7.  With  respect  to  the  things  in  which  dower  shall  he  had,  the  first  and 
most  comprehensive  rule,  is  that  which  has  been  already  stated  in  giving 
the  definition  of  dower;  viz.,  that  the  widow  shall  be  endowed  ol  all 
lands  and  tenements,  in  which  her  husband  had  an  estate  of  inheritance 
at  any  time  during  coverture,  and  of  which  any  issue,  that  she  might 
have  had,  might,  by  possibility,  have  been  heir.(5)  The  last  clause  of 
this  definition,  in  consequence  of  the  peculiarities  of  American  law  as 
to  entailments,  seems  to  be,  in  this  country,  obsolete  and  superfluous. 
It  is  accordingly  omitted  in  American  statutes,  which  define  dower, 
where  any  such  exist, 

8.  Dower  shall  be  had  not  only  in  lands  themselves,  but  also  in  all 
incorporeal  hereditaments  that  savor  of  the  realty, (c)  because  it  is  incident 
to  the  estates  to  which  they  are  appendant.  It  is  said,  that  in  the 
United  States,  dower  is  principally  confined  to  houses,  lands  and 
mills.(6) 

9.  There  shall  be  dower  in  mines  or  quarries,  if  they  have  been 
opened  before  the  husband's  death  ;  otherwise,  not.(c/)  But  it  matters 
not  whether  they  have  been  wrought  by  the  husband  or  by  his  lessee, 
or  whether  he  owned  the  land  itself,  or  merely  the  whole  stratum  of 
the  mine  or  quarry,  upon  the  land  of  another.(7) 


(1)  Buclianan  v.  Deshon,  1  llarr.  &  G.  289; 
4  Kent.  36. 

(2)  1    Smith's   St.    170.    Whetlier  now  in 
force,  qu. 

(3)  1  N.  Y.  Rev.   St.  740.     (See  Mick  v. 
Mick,  10  Wend.  379.) 

(4)  Priest  v.  Cummings,  16  Wend.  617. 


(5)  2  Cliit.  PI.  104;  Brewer  v.  Van  Ara- 
dale.  6  Dana,  204 

(G)  1  Cruise,  127;  4  Kent,  40;  Buckeridge 
V.  Ingram,  2  Ves  jun.  664;   4  Dane,  670. 

(7)  Slougliton  V.  Leigli,  1  Taun.  402.  (See 
The  King  v.  Dunsford,  2  Add.  &  Kl.  568-93; 
Coales  v.  Cheever.  1  Cow.  460-80 ;)  Quar- 
rington  v.  Artiiur,  10  M.  &  W.  335. 


(a)  In  the  same  State,  an  alien  feme  covert  may  be  naturalized ;  but  her  naturalization 
has  not,  under  tlie  general  act  of  Congress,  a  retro-aciive  operation,  so  as  to  'entitle  her  to 
lands  of  wliicli  her  husband  was  seized  during  coverture,  and  which  he  had  obtained  before 
her  naiurahzation.  Priest  v.  Cummings,  20  Wend.  338.  Nor  can  an  alien  widow  have 
dower,  though  at  tlie  time  of  the  marriage  the  husband  was  an  alien,  and  held  tlie  land 
under  tlie  enabling  act  of  1825.  Connolly  r.  Smith,  21  Wend,  59.  By  a  late  act,  the 
widow  of  an  alien  has  dower,  whether  herself  an  alien  or  not.  St.  1845,  94:  Currin  v.  Finn, 
3  Denio,  220. 

(b)  In  Kentucky,  a  widow,  who  was  an  alien  at  the  husband's  death,  has  no  dower. 
Alsncrry  v.  Hawkins,  9  Dana,  177.  In  Alabama,  where  the  widow  of  one,  who  conveyed 
his  land  while  a  non  resident,  claims  dower  in  such  land,  lying  in  the  State,  the  claim  will 
be  b:irred,  unless  made  within  twelve  months  from  his  death.  Clay.  174.  The  wife  of  an 
alien,  though  herself  an  American  citizen,  is  not  dowable  of  his  lands.  Congregational 
Church  V.  Morris,  8  Ala   182. 

(t)  Not  in  railroad  sliares.     Johns  v.  Johns,  1  McCook.  (Ohio,)  350. 

{d}  Because  to  open  them  would  be  waste.  If  in  any  State,  according  to  the  established 
law,  it  would  not  be  waste,  it  would  seem  to  follow  that  dower  should  be  allowed  in  a  mine, 
though  unopened.    (See  infra,  12,  as  to  wild  lauds.) 


CHAP.  IX]  ENDOWED,  AND  IN  WnAT  THINGS.  HI 

10.  A  husband  died  seized  of  a  traet  of  land  of  four  acres,  consisting 
of  a  slate  quarry  mostly  bplow,  but  partly  above,  the  surface  of  the 
ground.  One  quarter  of  an  acre  of  the  quarry  had  been  dug  over,  and 
the  practice  was,  to  take  a  section  often  or  twelve  leet  square  on  the 
top,  go  down  to  a  certain  depth,  and  then  recommence  on  the  top. 
Held,  the  whole  quarry  must  be  regarded  as  opened,  arfd  therefore 
subject  to  do\ver.(l) 

11.  Tenant  in  dower  of  coal  hinds  may  take  coal  to  any  extent 
from  a  mine  already  opened,  or  sink  new  shads  into  the  same  veins 
of  coal,  or  dig  into  a  new  seam  through  one  already  opened  above 
it.(2)(«) 

12.  The  peculiar  situation  of  the  land  in  this  country,  as  being  to  a 
very  great  extent  wild  and  uncleared,  has  given  rise  to  a  question  of 
dower,  which  seems  unknown  to  the  English  law,  viz.,  whether  a  widow 
shall  have  dower  in  vjild  lands.  This  question  seems  to  be  involved 
in  another,  viz.:  whether,  if  endowed  of  such  lands,  the  widow  could 
clear  them,  without  committing  luaste.  The  latter  question  will  be 
noticed  hereafter,  in  connection  with  the  subject  of  waste.  (See  ch.  18, 
see.  10.)  It  is  sufficient  to  say  here,  that  the  former  has  been  differently 
settled  in  different  States.  In  Massachusetts,  Maine  and  New  Hamp- 
shire, there  shall  be  no  dower  in  wild  lands,  because  the  clearing  of 
them  would  be  waste,  and  forfeit  the  estate.  And  there  shall  be  no 
dower  in  such  lands,  whether  the  husband  died  seized  of  them,  or 
whether  they  were  conveyed  by  him,  and  subsequently  cleared  by  the 
purchaser.  But  the  reason  of  the  rule  furnishes  an  exception  to  it.  A 
widow  shall  be  endowed  of  a  wood  lot  or  other  lands  contiguous  to 
and  used  with  a  farm  or  dwelling-house,  as  for  fuel,  fencing,  repairs, 
pasturing,  &c.,  though  not  cleared;  because  she  would  be  entitled  to 
estovers,  for  the  use  of  the  house  or  cultivated  land  assigned  to  her,  and 
at  the  same  time  could  not  lawfully  take  them  as  incident  thereto, 
without  a  special   assignment.(3)(i)     But  it  has  been  said  in    New 

(1)  Billings  V.  Taylor,  lOPick.  4G0.  1  Webb  v.  Townsend,   1    Tick.   21;  White  v. 

(2)  Croucli  V.  Pnrycar,   1  Rand.  258.  Willis,  7,  143;  Mass.  Rev.  St.  460 :  N.  H.  L. 

(3)  Conner   v.  Shcperd,     15    Mass.     164;' 190;  Rev.  St.  329 ;  Me.  Rev.  St.  391. 


(a)  In  North  Carolina  it  has  been  held,- that  the  widow  has  no  authority  to  make  turpen- 
tioe,  unless  done  by  the  husband.  But  in  the  ordinary  mode  of  making  it,  she  may  use 
trees  boxed  or  tended  for  turpentine  in  his  lifetirao,  and  may  also  box  now  ones,  as  the  others 
become  unfit  for  use,  not  increasing  the  amount  beyond  that  obtained  at  the  time  when 
dower  was  assigned.  Carr  v.  Carr,  4  Dev.  &  B  179.  Where  commissioners  divided  an 
estate  into  ci;,'ht  part.i,  and  assigned  a  third  of  each  division  to  the  widow,  and  one  lot  con- 
sisted vluvtty  of  wood  and  the  others  of  amble  lands;  held,  tiie  widow  vvas  not  bound  to 
use  eacii  parcel,  as  if  the  husband  had  lelt  only  the  lot  to  wlu(;h  it  belonged;  hut  might 
take  from  the  wood  lot  fuel  and  timber  fur  the  use  of  the  cultivated  land'^  Chil'ds  v  Smith 
1  Md.  Ch.  483. 

(6)  Where  the  husbnnd,  during  coverture,  was  seized  of  a  five-acre  lot,  "  partially  im- 
proved." and  "partly  covered  with  bushes  and  UMfenced,"at  liie  time  of  his  conveyance 
thereof;  held,  the  widow  was  entitled  to  dower  in  tiio  whole  lot.  Stevens  v.  Owen,  25 
Maine,  94.  Dower  cannot  be  claimed  in  land  covered  with  grovvino-  wood  and  limber 
though  used  by  the  husband  m  raising  wood,  &c.,  for  profit,  unless  it^be  a.«signed  in  con- 
nection with  bnilduigs  or  cultivated  land.  And  if  it  is,  tlie  widow  can  cut  only  enougii  to 
supply  the  dower  estate,  in  the  way  of  actual  use  and  con.sumption,  or  in  eonMection°with 
the  proper  occupation  and  enjoyment  of  such  estate.  White  v  Culler,  17  Pick.  248.  Alter 
the  assignment  of  dower  in  a  .iwelling-liouse  and  the  land  connected  with  it,  it  being  partly 
woodlnnd,  the  whole  having  been  (ncnpi-d  by  the  husband  as  one  farm,  the  widow  leased 
the  dow^resiate,  removed  Irom  the  hmd,  and  boarded  in  another  f^imily,  where  she  was 
supplied  with  food.     The  house,  having  become  untenantable,  was  taken"  down  by  consent 


112  DOWER.     WHAT  PERSONS  MAY  BE  [CHAP.  IX. 

Hampshire,  thai  perhaps  the  widow  might,  without  waste,  cut  ordinary 
fuel.  In  Rhode  Island  dower  is  allowed  in  woodland.  In  Michigan 
and  Ohio,  in  wild  lands.  Commissioners  estimate  the  annual  growth, 
and  assign  one-third  thereof,  either  by  the  number  of  cords  or  quantity 
of  land. (1)  In  those  states  where  either  statutes  or  judicial  decisions 
authorize  a  tenant  in  dower  to  cut  trees  and  timber,  it  would  seem  to 
be  necessarily  implied,  whether  so  expressly  declared  or  not,  that  a 
widow  is  dowable  of  wild  lands, 

13.  A  state  of  cultivation  is  the  converse  to  a  state  of  nature^  and  exists 
where  lands  have  been  wrought  with  a  view  to  a  crop,  till  they  are 
abandoned  for  e,yerj  purpose  of  agriculture,  and  designedly  permitted 
to  revert  to  a  condition  like  the  original  one.  It  is  not  material,  in 
regard  to  the  question  of  dower,  whether  the  lands  have  yielded  an 
income  or  not.  At  common  law,  the  income  or  annual  value  had  no 
bearing  upon  the  title  to  dower;  and  although  a  statute,  after  allowing 
to  the  widow  one-third  of  the  husband's  lands,  adds  that  she  shall  have 
so  much  as  will  yield  one-third  of  the  income  which  he  derived  from 
them,  this  is  not  to  be  regarded  as  any  limitation  of  the  right,  but  only 
as  a  secondary  guide  to  the  sheriff  in  making  the  assignment.  So, 
dower  shall  be  assigned  in  land,  which,  when  owned  by  the  husband 
during  coverture,  was  wood  and  pasture,  situated  a  mile  from  the 
homestead,  and  divided  from  it  by  land  of  strangers,  but  used  by  him 
as  a  pasture  appurtenant  to  the  homestead;  though  subsequently  it 
has  become  wholly  woodland.  But  not  in  woodland,  which  the  hus- 
band sold  from  the  homestead,  retaining  till  his  death,  as  part  of  the 
farm,  an  abundant  supply  of  wood  for  fuel,  fencing  and  repairs.(2) 

14.  Intimately  connected  with  the  subject  just  considered,  is  the 
question  of  a  widow's  right  to  dower  in  improvements^  made  upon  the 
land  since  the  husband  was  in  possession  of  it.  These  may  be  made 
either  by  the  heir,  after  the  husband's  death  and  before  assignment  of 
dower,  or  b}^  one  who  purchased  the  land  from  the  husband  in  his 
lifetime. 

15.  Where  improvements  are  made  by  the  heir,  the  widow  shall  be 
allowed  the  benefit  of  them. (a)  The  reason  is  said  to  be,  that  it  is  the 
folly  of  the  heir  not  to  assign  dower  before  making  the  improvements. 
Another  reason  is,  that,  as  will  be  seen  hereafter,  the  assignment  of 
dower  relates  hack  to  the  death  of  the  husband,  the  heir  is  regarded  as 
never  having  been  seized  of  this  portion  of  the  lands  ;(6)  and,  upon 


(1)  2  N.  H.  56;  R.  I.  St.  1840,  2022; 
Campbell,  2  Dougl.  14=1 ;  Allen  v.  McCoy,  6 
Ohio,  418. 

(2)  Johnson  ?;.  Perl ey,  2  N.  H.  56;  (but 


see  15  Mass.  167;)  Shattuck  v.  Gragg,  23 
Pick.  88;  Kuhn  v.  Kaler,  2  Shepl.  409; 
Mosher  v.  Mosher,  3,  371. 


of  all  parties.  Held,  neither  the  widow  nor  lessee  could  cut  wood  for  fuel ;  and  if  they  did, 
tiie  reversioner  might  take  it.  lb.  A  tenant  in  dower  cannot  cut  wood  for  fuel,  unless  the 
house  was  on  the  land  at  the  time  when  dower  was  assigned.  Fuller  v.  Wason,  7  N.  H. 
341.     And  she  can  use  it  only  in  such  house.     If  otherwise,  she  is  guilty  of  waste.     lb. 

(a)  Otherwise,  it  seems,  in  Wisconsin.     Rev.  Sts.  336. 

(p)  Tills  is  the  English  doctrine.  It  seems  to  be  somewhat  shaken  in  the  United  States. 
{^QQ  Descent.)  Also,  ch.  12,  sec.  33.  It  is  said,  the  claim  of  dower,  in  reference  to  tiiosa 
whose  title  originates  concurrently  witii  tiiat  of  tiio  widow,  is  governed  by  the  liw  in  force 
at  the  death  of  the  husband.  But,  as  .against  parties  having  specilic  rights  in  tiie  property 
prior  to  the  husband's  death,  by  tlio  law  in  force  when  such  rights  were  acquired.  Kennerly 
V.  Missouri,  &c.,  11  Mis.  204. 


CHAP.  IX.]  ENDOWED,  AND  IN  WHAT  THINGS.  113 

general  principles,  the  iniproveinenLs  belong  to  the  owner  of  the  soil. 
Judge  Story  regards  the  latter  as  the  true  reason  of  the  rule. (a)  In  a 
late  case  it  has  been  held,  that  in  a  suit  against  the  heir,  the  widow 
shall  have  dower  according  to  the  inereaseil  value,  independently  of 
his  labor  and  expenditures.(l) 

16.  On  the  other  hand,  it  is  said,  that  if  the  value  oLthe  land  is  im- 
paired in  the  hands  of  the  heir,  dower  shall  still  be  assigned  according 
to  the  value  at  the  time  of  assignment.  Whether  such  depreciation 
may  not  be  taken  into  account,  in  estimating  the  damages  awarded  to 
the  widow,  quoere.i^l) 

17.  Where  improvements  have  been  made  by  one  who  purchased 
the  land  from  the  husband  without  any  release  of  dower,  it  is  the  gene- 
ral rule,  that  dower  shall  be  estimated  according  to  the  value  of  the 
land  at  the  time  of  transfer,  whether  the  improvements  be  made  before 
or  after  the  husband's  death,  with  or  without  notice  of  the  widow's 
right  of  dower.  So,  where  an  old  building  is  torn  down  by  the  pur- 
chaser and  replaced  by  a  new  one,  the  widow  is  not  entitled  to  dower 
in  the  latter.  She  must  seek  compensation  in  a  court  of  equity.  The 
reas(jn  of  the  rule  is  said  to  be,  that  such  purchaser,  in  a  suit  upon  the 
husband's  warranty,  could  recover  only  the  value  of  the  land  without 
the  improvements.  Chancellor  Kent  remarks,  that  this  reason  has 
been  ably  criticised  and  questioned  in  this  eountry,(i)  but  the  rule  itself 
is  founded  in  justice  and  sound  policy. (3) 

18.  In  }*laryland,  where  the  husband  has  aliened  the  land,  if  a  compensa- 


(l)  Powell  V.  M.  &  B.  Manuf.  Co.,  3  Mas. 
347 ;  Gore  v.  Brazier,  3  Mass.  544 ;  Hum- 
phrey V.  Phinney,  2  John.  484 ;  Taylor  v. 
Broderick,  1  Dana,  347  ;  Thompson  v.  Mor- 
row, 5  S.  &  U.  289 ;  Ayer  v.  Spring,  10  Mass. 
80;  Co.  Lit.  32  a,  andn.  8;  Russell  v.  Gee, 
2  Const.  S.  C,  254;  Wilson  v.  Oatman,  2 
Blackf.  223;  Tod  v.  Baylor,  4  Leigh,  498; 
Maiioney  v.  Young,  3  Dana,  588;  Woolridge 


(2)  Co.  Litt.  32  a;   3  Mas.  368. 

(3)  3  Mas.  370;  10  Wend.  480;  Waters 
V.  Gooch,  6  J.  J.  Mar.  591  ;  4  Kent,  66  ; 
Ilobbs  V.  Harney,  4  Shepl.  80  ;  Beavers  v. 
Smith,  11  Ala.  20.  In  a  late  case  in  Eng- 
land, dower  hy  custom  was  allowed  in  im- 
provements made  by  a  purchaser.  Lord 
Denman  goes  into  a  learned  and  extended 
discussion  of  the  subject.    Doe  v.  Gwiunell,  1 


V.  Willvins,  3  How.  Miss.  360;  Law.son  v.  Ad.  &  El.  (N.  S.)  682  ;  Summers  v.  Babb,  13 
Morton,  6  Dana,  471;  Mannings.  Laboree,  IlHn.  483;  Barney  v.  Frownar,  9  Ala.  901; 
33  Maine,  343.  I  Wise.  Rev.  Sts.  333-4. 


(a)  Land  was  a.ssigned  for  dower  by  commissioners  of  the  Probate  Court,  with  the  assent 
of  tiie  lieir  and  widow,  and  the  report  of  tlie  conunissioncrs  was  subsequently  accepted. 
Held,  after  the  assignment,  the  widow  might  enter,  and  cut  and  carry  awaj'  tlie  growing 
crops  sown  by  the  lieir  previous  to  the  assignment,  though  such  entry  was  made  before 
acceptance  of  the  report.     Parker  v.  Parker,  17  Pick.  236. 

(b)  Particularly  by  Judge  Story  (in  3  Mas.  369-70,)  and  Ch.  J.  Tilghman  (in  5  S.  &  R. 
289.)  For,  supposing  the  husband  conveyed  without  warranty,  the  widow  (it  seems)  would 
still  liave  no  dower  in  improvements.  Tlie  former  learned  judge  also  criticises  another  rea- 
son which  has  been  sometimes  assigned,  namely,  that  the  husband  was  not  (he  owner  of 
the  improvements,  and  dower  is  allowed  only  in  what  the  husband  owned.  For  the  same 
reason  would  prevent  dower  in  improvements  made  by  the  heir,  wliich  is  always  allowed. 
The  rule  may  have  originated  in  the  policy  of  promoting  the  prosperity  of  the  country  by 
encouraging  improvements  in  agriculture  and  building;  and  in  on  anxiety  to  promote  alien- 
ations and  subinfeudations,  and  thus  to  disentangle  inheritances  from  some  of  their  numer- 
ous burdens. 

A  purcliaser  at  a  Chancery  sale,  supposing  bis  title  good,  made  improvements  for  man- 
ufacturing purposes.  A  widow  afterwards  filed  a  bill  for  dower,  and  her  right  was  estab- 
lished. Decreed,  that  she  should  receive  an  annual  sum  in  lieu  of  dower,  equivalent  to 
her  interest  without  the  improvements.  Lewis  v.  James,  8  Humph.  537.  It  seems,  the  sum 
ascertained  to  be  due  to  a  widow,  for  her  proportion  of  back  rents  collected  by  her  husband's 
grantee,  is  not  properly  chargeable  as  a  lien  on  the  estate,  Johnson  v.  Elliott,  12  Ala.  112. 

Vol.  L  8 


lU 


DOWER.     WHAT  PERSONS  MAY  BE 


[CHAP  IX. 


tion  in  money  is  made  to  the  widow  for  her  dower,  the  value  of  the  land 
at  the  husband's  death  is  the  criterion,  unless  the  increased  value  has 
arisen  from  the  labor  and  money  of  the  purchaser.(l)  In  Pennsylva- 
nia and  Ohio,(2)  dower  is  said  to  be  estimated  according  to  the  value 
of  the  land  at  the  time  of  application  for  davver,  without  the  improve- 
ments. In  New  Hampshire  a  statute  provides,  that  where  the  husband 
has  parted  with  his  title  to  the  land,  the  Widow  shall  be  endowed  of  so 
much  as  will  yield  one-third  of  the  income  derived  from  it  at  the 
time  of  alienation. (3)     The  same  rule  is  adopted  in  Alaine.(4) 

19.  Where  the  husband  conveyed  the  land  by  way  of  mortgage,  but 
remained  in  possession  and  improved,  and  the  mortgage  was  afterwards 
foreclosed;  the  dower  shall  be  of  the  improved  value,  because  the 
alienation  is  regarded  by  the  law  as  made  at  the  time  of  foreclosure.(5) 
So,  if  the  husband,  having  mortgaged,  make  improvements,  and  then 
convey  the  land,  the  widow  shall  have  dower  of  the  value  at  the  time 
of  the  latter  conveyance.  But  where  the  husband  merely  gave  a  bond 
for  the  land,  and  a  deed  was  given  after  his  death ;  held,  the  deed 
had  relation  to  the  bond,  and  dower  should  not  be  allowed  in  improve- 
ments made  by  the  purchaser.(6) 

20.  If  a  purchaser  from  the  husband,  instead  of  making  improve- 
ments, impair  the  value  of  the  property,  by  neglect  or  waste,  as  b\'  tear- 
ing down  buildings,  it  is  held  that  the  wife  has  no  remedy  against  him, 
her  title  being  merely  initiate  at  that  time.(7) 

21.  Where,  since  the  conveyance  made  by  the  husband,  the  land  has 
risen  in  value  from  extrinsic  causes,  such  as  the  increase  of  com- 
merce or  population  in  the  neighborhood,  it  seems  to  be  an  unsettled 
point,  whether  the  widow  shall  be  endowed  of  the  original  or  the  in- 
creased value.  The  former  standard  has  been  approved  in  New  York 
and  Virginia,  and  the  latter  in  Massachusetts,  Maine,  Pennsylvania, 
Kentucky,  (it  seems,)  Illinois,  Maryland  and  Ohio.(8)  Judge  Story 
suggests  a  distinction,  between  the  case  where  an  erection  upon  a  part 
of  the  land  itself  increases  the  value  of  the  remainder,  and  an  increase 
of  value  arising  from  causes  unconnected  with  such  erection  ;  and  also 
between  erections  which  in  themselves  raise  the  value  of  the  land,  and 
those  which  increase  it  by  the  business  carried  on  and  the  capital  em- 
ployed in  them,  such  as  manufactories.  Ilis  conclusion  is,  that  dower 
is  to  be  allowed  according  to  the  value  of  the  land  at  the  time  of  as- 
signment, excluding  all  the  increased  value  from  the  improvements  ac- 
tually made  upon  the  premises  by  the  alienee;  leaving  to  the  dowress 
the  full  benefit  of  any  increase  of  value,  arising  from  circumstances 
unconnected  with  those  improvements.(9)  On  the  other  hand,  the 
court  in  New  Yoik  hold,  that  both  at  common  law  and  by  a  fair  con- 


(1)  Bowie  V.  Berry,  1  Md.  Ch.  452. 

(2)  Thompson  v.  Morrow,  5  S  &  R.  289: 
Purd.  Dig.  221.  n.  ;  Walk.  Intro.  327  ;  Dun- 
seili  V  Bank,  &c ,  6  Ohio,  77;  Shirtzz;.  Shirtz, 
5  Walts,  255. 

(:{)  N.  H.  L.  1829.  p.  510. 

(4)  Carter  v.  Parker,  28  Maine,  509. 

(5)  Halo  V    Jame.s,  6  Jolin.  Cha.  258. 

(G)  3  Muss.  459  ;  Wilson  v.  Oatman,  2 
Blackf.  224. 


(7)  3  Mas.  367;  M'Clanahan  v.  Porter,  10 
Mis.  746. 

(8)  4  Kent.  66-7  ;  Thompson  v.  Morrow, 
5  S.  &  R.  289;  3  Mass.  375;  i)orc-he.ster  v. 
Coventry,  11  John.  510;  Walker  v  St-hny- 
ler,  10  Wend.  480;  Tod  v.  Baylor,  4  Leigh, 
498  ;  Duiiseth  v  Bank.  &e,  6  Uiiio,  76  ;  Mo- 
siier  V.  Mosiier,  3  Siiepl.  371;  Sum ners  «. 
Baiib,  13  Illin.  483;  Bowie  v.  Berry.  1  Md. 
Ch.  452  ;  see  Barney  v.  Frownar,  9  Ala.  901. 

(9)  3  Mas.  375. 


CHAP.  IX.]  ENDOWED,  AND  IN  WHAT  THINGS.  II5 

struction  of  the  statutes  of  the  State,  the  widow  shall  have  her  dower 
according  to  the  value  at  the  time  of  alienation,  whether  it  has  since  in- 
creased or  diminished. (1) 

22.  In  Virginia,  it  has  been  held,  that  the  widow  cannot  claim  one- 
third  of  the  procetds  of  land  sold  by  the  husband. (2) 

23.  In  England,  Magna  Charta  provides  that  a  wkkw  shall  not  be 
dowable  of  a  caslle  or  foriress.{d)  No  case  probably  has  occurred,  or 
will  occur,  in  this  country,  for  the  application  of  this  particular  rule. 
But  an  anahgoas  principle  has  been  adopted,  in  one  instance,  in  Ohio. 

24.  Several  owners  of  laud  in  Cincinnati,  of  whom  A  was  one,  mu- 
tually agreed  to  appropriate  their  land  to  public  use  for  a  street  and  a 
market-house.  The  city  council  carried  the  appropriation  into  effect 
by  erecting  the  house;  but  A  never  conveyed  the  land  on  which  it 
stood.  Held,  A's  widow  could  not  have  dower  in  the  market-house, 
for  the  same  reason  that  in  England  a  woman  was  not  dowable  in  a 
caslle:  it  could  yield  nothing  to  her  support  by  a  direct  participation 
in  the  possession,  without  such  an  interference  with  the  public  right  to 
control  the  whole  subject,  as  to  render  its  enjoyment  inconvenient  and 
unsafe,  if  not  impossible.(4) 

25.  There  shall  be  dower  from  the  profits  of  a  mill  or  fishery,  but 
not  the  right  of  using  for  hydraulic  purposes  part  of  the  surplus  waters 
of  the  Erie  Canal,  under  a  grant  from  the  commissioners.(5) 

26.  In  Virginia,  dower  is  allowed  upon  annuities  as  well  as  rents, 
charged  upon  or  issuing  out  of  real  estate.(6) 

27.  In  Pennsylvania,  in  lands  held  by  improvement  or  warrant  and 
survey,  but  not  in  those  held  by  warrant  rnerely.(7)(a) 

28.  In  Illinois  and  Virginia,  in  lands  merely  contracted  for,  where 
the  title  may  be  completed,  although,  in  Virginia,  the  contract  were 
parol.  So,  in  Virginia,  in  lands  ^jos5e55e6?  by  the  husband.  In  Alaba- 
ma, in  lands  contracted  and  paid  for.  In  Kentucky,  in  lands  contracted 
for  by  bond.  But  only  where  the  husband  holds  the  contract  at  his 
death;  not  where  he  has  assigned  it.(a)  In  Maryland,  a  statute  of 
1818  gave  dower  in  equitable  estates.  Held,  not  applicable  to  lands 
of  which  the  husband  held  leases,  with  covenants  to  convey  in  fee 
when  requested;  such  leases  not  operating  by  way  of  lease  and  release 
but  passing  a  legal  title.(9)  Nor  is  dower  allowed  in  an  equitable  es- 
tate which  ihe  husband  disposes  of  in  his  lifetime.(lO)  Nor  an  equity  of 
redemption,  where  the  mortgage  was  made  previous  to  the  statute.(ll) 
In  Teimessec,  where  the  legal  title  is  vested  as  security  for  the  pur- 
chase-money, the  widow  of  the  equitable  owner  cannot  have  dowxr, 

(1)  n    John.   610  ;  Shaw   v.    White,    13,  [       (8)  Illin.  Rev.  L.  627;  Rowton  v.  Rowton, 
179;  Hale  v.  James,  6  John.  Cha.  258.  !  1  Hen.  &  M.  91 ;  Dean  v.  Mitchell    4  J    J 

(2)  Filzhu-h  V.  Foote,  3  Call,  13.  j  ^ar,  451 :  Stephens  v.  Smith,  lb.  GG ;  Ham- 

(3)  1  Cruise,  129.  I  jlton  v.  Hu<>;he.s,  G  lb.   582;   Lewis  v.  Moor- 

(4)  Gwynne  v.  Cincinnati.  1  Ohio,  459.        |  man,  7  Port.  522 ;  Virg.  Code,  474. 


(5)  Co.  Lit.   32   a;  Kingman  v.   Sparrow, 
12  Barb.  201. 

(6)  Anth.  Shep.  477. 

(7)  Purd.  Dig.  221. 


(9)  Spanglerv.  Stanler,  1  Md.  Ch.  36. 

(10)  Bowie  V.  Berry,  1  Md.  (]h.  452. 

(11)  Hopiiius  V.  Frey,  2  Gill.  359. 


(a)  Where  the  liusband  had  purchased  from  a  reserve  of  Indian  lands  under  tlie  Creek 
treaty,  witii  the  approbation  of  the  President,  held,  his  wife  should  have  dower.  Parks  « 
Brooks,  16  Ala.  529. 


116 


DOWER.     WHAT  PERSONS  MAY  BE 


[CHAP.  IX. 


without  payment  of  this  sum  ;  but  she  may  require  a  sale  for  this  pur- 
pose, and  have  dower  in  a  third  of  the  surplus.(l) 

29.  In  Kentucky  it  is  held,  that,  as.  there  cannot  be  two  cotempo- 
rary  rights  of  dower  in  the  same  land,  the  widow  of  an  obligor  is  not 
entitled  to  dower.  But  if,  instead  of  requiring  specific  performance, 
the  obligee  sues  and  recovers  damages  for  a  bi'cach  of  the  bond,  after 
the  obligor's  death,  the  widow  of  the  latter  is  restored  to  her  dow- 
er.(2)(a)  • 

30.  in  Ohio,  dower  shall  be  had  in  all  lands  in  which  the  husband 
was  interested  by  bond,  article,  lease,  or  other  evidence  of  claim.  So, 
in  land  which  he  purchased  without  deed,  paying  a  part  of  the  price, 
and  afterwards  making  improvements.  But  oidy  in  such  estates  of  this 
description,  as  the  nusband  owned  at  his  death. (8)  He  must  have  had 
a  legal  estate  during  the  coverture,  or  an  equitable  interest  at  his 
death. (4) 

31.  In  Virginia,  Kentucky,  Arkansas(Z))  and  Missouri,  dower  is  ex- 
pressly allowed  in  slaves.  But,  in  the  three  first  States  the  right  is 
confined  to  such  slaves  as  were  in  possession  of  the  husband  at  his 
death. (5)  And,  in  Kentucky,  it  has  been  held,  that  there  shall  be  no 
dower  in  slaves  emancipated  by  the  will  of  the  husband,  even  though 
the  widow  renounce  the  provisions  of  the  will  in  her  favor.(6) 

32.  It  has  been  seen,  that  io  general  all  estates  of  iuheritance  are  sub- 
ject to  dower.  Thus  thej'e  is  dower  in  hase  or  qualified  fees.  So  also  in 
estates  tail.{l)  And  liability  to  dower  has  even  been  mentioned  as  the 
distinguishing  criterion  ot  an  estate  tail. (8)  With  respect  to  qualified 
and  conditional  fees,  substantially  the  same  remarks  will  apply  to  cur- 
tesy and  to  dower.(c)     (See  cli.  6,  s.  24.) 


(1)  Thompson  v.  Cochran,  7  Humph.  72. 

(2)  Dean  v.  Mitchell.  4  J.  J.  Mar.  451. 

(3)  2  Chase    Sts.  1314;    Smiley  v.  Wright, 
2  Ohio,  507;  Derush  v.  Brown.  8,  412. 

(4)  Miller  V.  Wilson,  15  Ohio,  108;    Rands 
V.  Kendall,  15  Ohio,  671. 

(5)  Anth.   Shep.  483,  648;  Snjiley  v.  Smi- 
ley, 1  Dai.a.  94;  Misso.  St.  1836,  61;  1840-1, 


71;    Ark.   Rev.    St.   339.      See    Sanders   v. 
Sander.s,  12  B.  Mon.  40. 

(6)  Lee  z^.  Lee,  1  Dana,  48;  Brewer  v.  Yau 
Arsdale,  6,  204 ;  Graham  v.  Sam,  7  B.  Mon. 
403. 

(7)  1  Cruise,  127;  Buckeridge  v.  Ingram, 
2  Yes.  jun.  664;  4  Kent,  40. 

(8)  Low  V.  Burrow,  3  P.  Wms.  263. 


(a)  Upon  a  sale  of  land,  part  of  the  price  was  paid,  a  note  given  for  the  balance,  and  a 
bond  to  convey  upon  full  payment.  The  vendee  took  possession  and  died ;  the  vendor 
brought  a  bill  for  sale  of  tlie  land,  and  it  was  sold,  the  vendor  having  previously  married 
and  died.  Held,  the  widow  of  the  vendor  was  not  entitled  to  dower.  Kintner  v.  McEea, 
2  Cart.  453. 

(6)  In  this  State,  if  there  are  no  children,  the  widow  is  endowed  with  half  the  laud  and 
half  the  slaves  of  which  the  husband  died  seized,  and  half  the  personal  estate,  absolutely, 
in  her  own  right.  Ark.  Rev.  Sts.  339.  Removal  of  slaves  from  the  State  is  a  forfeiture  of 
dower.     lb.  342.     See  Cook  v.  Cook,  7  Eng.  381. 

(c)  One  having  possession  under  a  2Jre-e??ip<i'o?i  right  has  no  higlier  estate  than  a  tenant 
for  years,  and  not  one  subject  to  dower.     Davenport  v.  Farrar,  1  Scam.  316. 

By  section  4  of  the  act  concerning  conveyances,  (Rev.  Code,  1825,)  in  Missouri,  the  convey- 
ance of  an  estate  to  one  and  the  heirs  of  lier  body,  ve.sted  in  her  a  life  estate,  remainder  in 
fee  in  her  heirs,  not  subject  to  dower  or  curtesy.     Burris  v.  Page,  12  Mis.  358. 

A  widow  is  dowable  of  a,  ee-simple,  determinable  by  executory  devise  on  her  husband's 
dying  without  issue  living  at  the  time  of  his  death.     Evans  v.  Evans,  9  Barr.  190. 

A,  for  a  consideratioii  paid  by  B,  conveyed  land  to  C  in  trust  for  the  use  of  B,  his  heirs 
and  assigns  for  ever,  and  to  permit  the  said  B  to  have  and  possess  the  same,  &c.,  and  iu 
trust  to  convey  the  same  to  such  person,  &c.,  as  the  said  B  shall,  &c.,  direct  and  appoint. 
Held,  B  took,  under  the  statute  of  uses,  at  least  a  qualified  or  determinable  fee,  and,  in  the 
absence  of  any  appointment,  his  widow  was  entitled  to  dower.    Peay  v.  Peay,  2  Rich.  Equ. 

i:09. 


CllxiP.  IX.] 


ENDOWED,  AND  IN  WHAT  THINGS. 


11' 


33.  Devise  to  A  and  his  iieirs  forever,  (charged  witl)  an  annuity,) 
and,  if  A  should  have  no  issue,  upon  his  death,  to  the  heir  at  law,  sub- 
ject to  legacies  to  be  given  by  A  to  tiie  younger  branches  of  the  family. 
A  dies  without  issue.     A's  widow  has  dower.(l) 

8-i.  In  the  case  of  an  estate  tail,  it  has  been  seen  that  curtesy  does 
not  cease,  with  a  determination  of  the  estate,  from  jac  in  connectitjn 
with  which  it  arises.(2)  But  there  are  sevei'al  instances  where  such 
determination  puts  an  end  to  the  curtesy  of  the  husband  and  to  the 
dower  of  the  wife  :  1.  Where  there  is  an  eviction  by  paramount  title; 
2.  An  entry  for  breach  of  condition;  3.  Where  a  qualified  or  base  fee 
terminates  by  its  own  limitation ;  4.  Where  a  fee  terminates  by  the 
happening  of  an  event  on  which  it  is  made  determinable.  Or,  in  gen- 
eral, the  estate  is  terminated,  by  every  subsisting  claim  or  incumbrance 
in  law  or  equity,  existing  before  the  inception  of  the  title,  and  which 
would  have  defeated  the  husband's  seizin.(3)  It  has  been  said,  that  the 
reason  why  estates  tail  are  subject  to  dower,  is,  because  they  may  in 
certain  ways  be  enlarged  into  estates  in  fee-simple.  But  this  lias  lately 
been  declared  an  erroneous  opinion  ;  since  dower  was  allowed  both  in 
conditional  fees  when  first  introduced,  and  also  in  estates  tail  after  the 
statute  de  donis,  and  before  the  introduction  of  the  common  recovery 
for  the  purpose  of  barring  them.  In  case  of  escheat  for  want  of  heirs, 
the  widow  still  has  dower.(4) 

35.  An  estate  j90wr  autre  vie  is  not  subject  to  dower.  Thus,  where 
one  purchases  the  life  estate  of  a  tenant  by  the  curtesy  initiate,  sold 
upon  execution,  the  widow  of  such  purchaser  has  no  dower.(5) 

36.  In  Massachusetts,  estates  for  years,  where  the  term  was  limited 
for  a  hundred  years  or  more,  and  fifty  years  remain  unexpired,  are 
subject  to  dower,  the  dowress  paying  one-third  of  the  rent,  if  any.(6) 
In  Missouri,  there  is  dower  in  leaseholds  far  more  than  twentv  years. 
In  Maryland,  a  lease  for.  ninety-nine  years,  renewable  forever,  is  not 
subject  to  dower.(7) 

37.  The  subject  of  dower  in  uses  and  trusts,  equities  of  redemption, 
and  equitable  estates  generally, (a)  rents,  commons,  joint  tenancies,  &c., 
will  be  considered  hereafter,  under  those  respective  titles. 

38.  There  shall  be  no  dower  in  a  wrongful  estate.  Thus,  where  a  man 
has  a  title  to  land,  and  a  rigid  of  action  to  assert  it,  but  no  right  of  mtry^ 
and  he  enters  and  dies;  although  his  heir  is  remitted  to  the  rightful  es- 
tate, the  widow  shall  not  have  dower.(8) 

39.  But  the  wife  of  a  disseizor  shall  have  dower,  till  the  disseizin  be 
defeated.(9)  So,  the  widow  of  a  man,  against  whom  judgment  existed 
at  the  time  of  the  marriage,  is  entitled  to  dower,  in  the  land  of  which 
he  was  seized  during  coverture,  subject  to  the  judgments.(lO) 

'"^    An  ancient  English  statute  (Westminster  2,  c.  4)  provides,  that 


40. 


(1)  Moody  V.  King,  2  Biugli.  447. 

(2)  Ch.  6. 

(3)  Co.  Lit.  241  a  ;  Edward  Seymor's  case, 
10  Rep.  97  b:  4  Dane,  667;  4  Kent,  49; 
Davenport  v.  Farrar,  1  Scam.  316. 

(4)  2  Bing.  452  ;   4  Kent,  48. 

(5)  Gillis  V.  Brown,  5  Cow.  388. 


(6)  Ma.ss.  Rev.  St.  411. 

(7)  Misso.  St.  228 ;  Spangler  v.  Stauler,  1 
Md.  Ch.  36 

(8)  1  Cruise,  128. 

(9)  4  Dane,  668. 

(10)  Robbins  v.  Robbing.  8  Blackf.  174. 


(o)  See  Coster  v.  Clarke,  3  Edw.  47 :  Lyon  v.  Lyon,  8  Ired.  Equ.  201. 


118 


DOWER.     HOW  BARRED. 


[CHAP.  X. 


where  the  husband  gave  up  his  land  to  an  adverse  claimant  collusivelj,  ~ 
bj  default,  the  wife  may  claim  dower  and  compel  the  tenant  to  prove 
his  title.     Similar  acts  have  been  passed  in  New  York,  Missouri,  Ohio 
and  Kentuckj.(l) 


CHAPTEE   X. 

DOWER.      HOW   BARRED. 


1.  Indicate  right. 

2.  Crime  of  liusband. 

3.  Detinue  of  charters. 

5.  Transfer  by  liie  husband. 

8.  Exchange  of  lands. 

9.  Equitable  and  implied  bars  of  dower. 

12.  Partition. 

13.  Deed  of  wife,  in  England. 

14.  Fine.  &c. 

15.  Deed  of  husband  alone,  and  sale  of  land 

for  debts. 

29.  Deed  of  husband  and  wife. 


44.  Wife's   release   can   operate   only   as 

such. 

45.  Devise  or  legacy,  when  a  bar. 

53.  When    an    implied    bar,    in    law    or 

equity. 
64.  Legacy  to  widow,  how  regarded. 

66.  Apportionment  of  legacy. 

67.  Disposal  of  legacy,  wiien  renounced. 

68.  American  law  as  to  devises  in  bar  of 

dower. 
71.  Election  between  a  devise  and  dower. 

75.  Time  of  election. 

76.  Mode  of  election. 


1.  The  inchoate  right  of  a  wife  to  dower  attaches  at  the  instant 
of  the  marriage.  Such  right,  however,  may  be  barred  or  defeated  by 
several  circumstances,  some  of  which  have  already  been  incidentally 
noticed,(rt)  but  which  will  now  be  considered  more  at  length, 

2.  Ancientl}',  in  England,  an  attainder  of  treason  or  lelony  against 
the  husband  was  a  bar  of  dower.  The  principle  was  variously  modi- 
fied by  the  successive  statutes  of  1  Edw.  6,  c,  12,  5  and  6  Edw,  6,  c. 
11,  In  the  United  States,  forfeiture  of  estates  for  crime  is,  for  the 
most  part,  abolished.  And  where  lands  have  been  confiscated  by  ex- 
press legislation  for  adherence  to  the  public  enemy,  dower  has  still 
been  allowed.  In  New  Jersey  it  is  expressly  provided  by  statute, 
that  the  right  of  dower  shall  not  be  affected  by  the  crime  of  the 
husband, (2)(/;) 

3.  Another  circumstance,  which  by  the  English  law  bars  or  defeats 
dower,  is  detinue  of  charters ;  by  which  is  meant,  a  detention  or  keep- 
ing back,  by  the  widow,  of  the  charters  or  title  deeds  of  the  estate 
from  the  heir.  This  circumstance  is  of  rare  occurrence  in  the  United 
States,  and  it  is  not  known  that  any  case  upon  the  subject  is  to  be  found 
in  the  American  Eeports,(8) 


(1)  1  N.  Y.  Rev.  St.  742  ;  Misso.  St.  228; 
Walk.  Intro.  325  ;   1  Ky.  Rev.  L.  581. 

(2)  Palmer  v.  Ilorton,   1  John.  Cas.  27  ; 


Sewall  V.  Lee,  9  Mass.  363  ;  Wells  v.  Martin, 
2  Bay,  20:   IN.  J.  Rev.  C.  263. 
(3)  Stearns,  310. 


(a)  See  Adultery,  Divorce,  Elojyement. 

(b)  In  Enghmd,  at  common  lnvv,  a  woman  loses  dower  by  being  attainted  of  treason  or 
felony.  But,  if  pardoned,  her  right  revives,  though  the  husband  have  aliened  in  the  mean 
time.     Co.  Lit.  83  a;   13  Rep.  23. 


CHAP.  X.] 


DOWER.  HOW  BARRED. 


119 


4.  The  charters  must  relate  to  the  Uiiid.s  in  which  tl(nver  is  chiiii\cd, 
and  tlic  tenant  by  his  plea  must  show  tiie  certainty  of  the  charters,  so 
that  an  issue  may  be  joined.  A  stranger  cannot  set  up  this  dei'ence, 
even  though  tlie  charters  were  conve^'cd  to  him  by  the  husband.  He 
who  pleatls  detinue  of  charters,  ought  to  plead  that  he  has  been  al- 
ways leady,  and  yet  is,  to  render  dower,  if  the  demauWai^t  would  deliver 
theni.(l) 

5.  Inasmuch  as  a  widow  is  dowable  of  all  lands,  &c.,  of  which  the  huS' 
band  was, seized  during  coverture^  it  follows  of  course,  that  no  transfer,  by 
the  husband,  ot  land  once  acquired  and  owned  after  the  marriage,  will 
bar  or  defeat  the  wife's  dower.  Nor  will  even  the  release  and  extin- 
guishment of  a  rent,  in  which  she  is  dowable,  bar  her  right  to  dower 
therein.  So  a  second  husband  cannot  convey  his  wife's  dower  in  the 
first  husband's  estate.(2)(a) 

6.  Where  a  husband  conveys  away  his  land  on  the  very  day  of  his 
niarriage,  the  law,  favoring  dower,  will  intend  the  marriage  to  have 
preceded  the  conveyance,  and  the  widow  shall  have  dower.  But  where 
a  man  before  marriage  makes  a  conveyance  of  lands,  which  is  never 
acknowledged  or  legally  recorded,  his  widow  shall  not  have  dow- 
er.(3j(6) 

7.  The  principle  above  stated,  although  undoubtedly  in  force  in  this 
country  as  a  rule  of  the  comm.on  law,  has  been  recognized  and  affirmed 
in  many  of  the  States  by  express  statute.  In  Indiana,  it  is  provided 
that  the  wife  shall  not  be  barred  of  her  dower,  by  any  decree^  executioii[c) 


(1)  Ann  Bedingfield's  case,  9  Rep.  17  b; 
Brickluad  v.  The  Arclibisliop,  &c.,  Hob.  199  ; 
4  Dane,  606. 

(2;    4  Kent,  50 ;   Abergavenaey's  case,   6 


Co.  79;   Haydon  v.  Kwin^   1   B.  Moiir.  114: 
Mnnso  V.  Buchanan,  I  Md.  Ch.  202. 

(3)  Slew-art  v.  Stewart,   3  J.   J.   Uur.  48 
Blood  V.  Blood,  23  Piek.  80. 


(a)  So  dower  is  allowed,  notwithstanding  an  agreement  to  convey  by  the  husband,  exe- 
cuted under  a  decree  of  court  after  his  death.  Riddlesberger  w.  Mentner,  7  Walls,  141; 
Covert  V.  Herizogg,  4  Barr,  145  In  New  Hampshire,  (Cotnp.  Sts.  419,)  the  husband  of  aa 
insane  woman  may  obtain  authority  (rom  the  court  to  release  her  dower  in  land  conveyed 
by  him.     So  in  Virginia,  (Virg  Code.  537.) 

(6)  So,  where  a  statute  provided,  tiiat  a  deed  in  trust  should  not  be  valid  against  creditors 
and purckastrs,  unless  proved  and  registered;  held,  such  deed  barred  dower,  tiiougii  not 
proved,  Ac,  till  after  tlie  husband's  death — the  widow  being  neither  a  creditor  nor  purchaser. 
Norwood  V.  Marrow,  4  Dev.  &  B.  442.  A  conveys  to  B,  who  enters  upon  the  land,  and  re- 
conveys  to  A,  neither  deed  being  recorded.  A  then  conveys  to  C,  who  has  no  knowledge 
of  B's  having  ever  owned  the  land.  Held,  the  widow  ofB  could  not  claim  dower  against  C. 
Emerson  v.  Karris,  0  Met.  475.  If  the  Imsband  makes  a  voidaljle  deed,  but  never  avoids 
it,  dower  is  barred;  otherwise,  if  tlie  deed  is  void.  4  Dev.  &  B.  442.  Thus,  if  made  for 
usurious  consideration,  the  widow  is  entitled  to  dower,  witiiout  waiting  for  the  heirs  to 
avoid  the  deed.  lb.  A  widow  is  not  entitled  to  do-,ver  in  lands,  conveyed  away  by  lier  hus- 
band before  marriage,  although  such  conveyance  was  fraudulent  and  void  as  against  his 
creditors.  Whitlied  v.  Mallory,  4  Cush.  138.  See  Rijhards  v.  Richards,  11  Humpli.  429  ; 
Cook  V.  Cook,  7  Kng.  381. 

Tlie  owner  of  land  before  his  marriage  made  a  fraudulent  conveyance  thereof  The 
grantee  conveyed  to  a  third  person  for  the  consideration  of  love  and  alleclion,  after  which 
the  grantor  married.  A  creditor  of  the  grantor  subsequently  levied  his  execution  on  the 
land  so  conveyed,  and  the  appraisers  made  a  deduclioii  from  the  value  on  account  of  the 
possible  right  of  dower  liierein  of  the  wife  of  the  judgment  debtor.  In  a  writ  of  entry  by 
the  creditor  against  the  second  grantee  to  recover  tiie  land  levied  on  ;  held,  the  wife  had 
no  right  of  dower  therein  ;  and  that  the  tenant  mit;lit  avoid  the  leV3-,  on  the  ground  that  by 
reason  of  such  deduction  too  great  an  amount  of  land  had  been  taken  on  the  execution,  lb. 
But  if  a  iiusband  convey  land  without  consideration,  or  to  one  as  heir,  in  order  to  defeat 
dower,  equity  will  compel  an  account  with  the  widow,  for  one-third  of  the  property. 
Jeiuiy  V.  Jenny,  24  Verm   324. 

(c)  So  in  Alabama,     Nance  v.  Hooper,  11  Ala.  554. 


120  DOWER.     HOW  BARRED.  [CHAP.  X. 

or  mort<jage^  to  wliicli  she  is  not  a  party. (a)  In  Missouri,  the  laches, 
default,  covin  and  crime  of  the  husband  are  also  guarded  against. 
Similar  provisions  are  made  in  New  York,  Ohio  and  Arkansas.  In 
Tennessee,  it  has  been  decided,  that  the  title  of  a  widow  is  paramount 
to  the  rights  of  creditors,  claiming  after  the  husband's  death  (1) 

8.  There  is  one  instance  in  the  English  law,  where  a  transfer  bj  the 
husband  alone  will  operate  as  a  bar  of  dower.  This  is  the  case  of  an  ex- 
change of  lands.  (See  Exchange.)  In  such  case,  the  widow  must  elect 
to  be  endowed  either  of  those  given  or  those  taken  in  exchange — she 
cannot  have  dower  in  both.(2)  The  form  of  conveyance  known  to  the 
English  law,  technicallj',  as  an  exchange,  is  but  little  if  at  all  practiced 
in  the  United  States.  But  Mr.  Dane  laj^s  down  the  principle  above 
stated  as  a  rule  of  American  law.  It  has  been  recognized  in  Kentucky 
and  New  York.  But  in  the  latter  State  it  is  held,  that  the  word  ex- 
change^ as  used  in  the  Kevised  Statutes,  in  exclusion  of  the  wife  from 
dower  in  lands  exchanged,  requires  a  mutual  grant  of  equal  interests  in 
the  respective  parcels  of  land,  the  one  in  consideration  of  the  other. 
The  transfer  of  an  estate,  under  a  lease  in  perpetuity,  in  75  acres  for  11 
acres  and  $700  in  other  property,  will  not  constitute  a  legal  exchange; 
and,  where  two  defective  conveyances  are  proved,  two  valid  convey- 
ances will  not  be  presumed,  to  perfect  a  legal  exchange.  So,  in  New 
Hampshire,  where  an  exchange  consists  in  merely  giving  land  for  land, 
by  deeds  in  common  form,  without  the  use  of  the  word  exchange^  the 
English  rule  does  not  apply.  In  Arkansas  and  Wisconsin,  where  one 
exchanges  lands,  his  widow  must  take  dower  in  those  received  by  him, 
unless,  in  one  year  from  his  death,  she  brings  a  suit  for  dower  in  the 
lands  parted  with.(8) 

9.  In  equity,  a  mere  agreement  by  the  husband  to  convey  the  land, 
or  a  verbal  sale  or  gift  of  it,  if  made  before  marriage  and  enforced  or 
executed  after,  bars  the  widow  of  her  dower.  The  husband  is  regard- 
ed as  never  having  been  seized  during  coverture.  So,  although  he  was 
an  infant  at  the  time  of  the  contract,  but  conveys  after  coming  of  age, 
and  after  marriage.(4)  And  it  is  said  to  have  been  held  in  Ohio,  (prob- 
ably in  equity,  upon  the  principle  of  an  equitable  estoppel,)  that  where 
a  widow  was  present  at  a  sale  of  the  land  by  the  administrator,  having 

^  previously  agreed  to  it,  and  not  dissenting  at  the  time,  and  the  land 
was  sold  free  fiom  dower,  and  brought  a  larger  price  in  consequence; 
she  was  barred  of  her  dower,  though  the  purchaser  knew  of  her 
claim. (5)  In  Viiginia,  both  ot  the  principles  above  stated  have  been 
suggested,  as  doubtful  and  unsettled  points;  although,  in  a  case   rela- 

(l)Ind.  Rev.  St.  238-9;   Misso.  St.  228;,  Mar.  64;   1  K  Y.  Rev.  Sts.  740;  Wilcox  t;. 


Combs  V.  Young.  4  Yerg.  218;  Ark.  Rev. 
St.  358 ;  1  N.  Y.  Rev.  St.  742  ;  2  Chase, 
1315.  See  Reed  v.  Campbell,  1  Meigs,  388 ; 
London  v.  London,  1  Humpli.  1 ;  Frost  v. 
Etheridge,  1  Badg.  &  Dev.  30 ;  Norwood  v. 
Marrow,"  3  Bat.  442.     See  /«/?■«,  1 6. 

(2)  Co.  Lit.  31  b. 

(3)  4  Dane,  068;  Stevens  v.  Smith,  4  J.  J. 


Randall,  7   Barb,  633  ;  Cass  v.  Thompson,  1 
N.  H.  65 ;  Wise.  Rev.  Sts.  333. 

(4)  Greene  i).  G-reene,  1  Ham.  538  ;  Oldham 
V.  Sale,  1  B.  Mon.  77  ;  Gaines  v.  Gaines,  9, 
295. 

(5)  Walk.  Intro.  326;  Smiley  v.  Wright,  2 
Ohio,  509.  See  Lawrence  v.  Brown,  1  Seld. 
394. 


(a)  As  dower  is  allowed  in  that  State  in  all  lands  of  which  the  husband  was  seized 
during  coverture,  the  enumeration  of  tliese  three  modes  of  charge  or  transfer  of  course 
does  not  enable  the  husband  to  bar  dower  in  any  other  way — a.s,  for  instance,  by  an  abso- 
lute deed. 


CHAP.  X.] 


DOWKR.  HOW  BARRED. 


121 


ting  to  the  former,  tlic  liu.sband  had  received  the  price  of  tlie  land  or  a 
part  of  it,  and  the  wife  had  notice  of  tlie  contract  before  marriage  ;  and 
in  the  case  relating  to  the  latter,  the  sale  oi"  the  land  was  made  to  an 
innocent  purchaser.(l) 

9  a.  Where  the  guardian  of  minors,  with  the  concurrence  of  the 
widow,  who  had  a  right  of  dower,  obtained  an  order  for-the  sale  of  their 
land,  and  she  was  present  at  the  sale,  acquiescing  therein,  and  received 
a  })art  of  the  purchase-money  in  commutation  of  dower;  iield,  she  could 
not  afterwards  claim  dower.(2) 

9  6.  So,  where  a  widow  administers  on  the  estate  of  her  deceased 
husband,  sells  real  estate  under  order  of  court,  and  conveys  it  with 
covenants  of  warranty;  she  will  be  thereby  estopped  to  claim  dower.(8) 

9  c.  Two  infants  intermarried,  and  before  their  majority  a  decree  for 
alimony  was  rendered,  giving  the  wife  certain  property,  which  she  took 
and  enjoyed.  After  tlieir  majority,  they  were  divorced  a  vinculo,  and 
the  wile  afterward  married  twice,  and  she  and  her  second  husband 
brought  an  action  for  dower  against  a  purchaser  of  land  sold  under 
execution  against  her  first  husband,  in  which  she  had  not  released  her 
dow«T.  Held,  as  she  received  and  enjoyed  the  property  during  her  in,- 
fancy  and  since  her  majority,  she  was  not  entitled  to  any  dower.(4) 

9  d  A  Jeme  covert^  after  a  sale  of  land  by  her  husband,  accepted 
from  the  purchaser  two  slaves,  in  lieu  of  dower,  and  retained  them, 
without  claim  of  dower,  seven  or  eight  years  after  the  death  of  her 
husband.  Held,  although  the  agreement  made  by  her  while  covert 
was  voidable,  3'et  her  long  acquiescence  might  be  construed  into  a  re- 
newal of  it ;  and  where,  after  having  recovered  her  dower  in  proceed- 
ings at  law,  she  brought  a  bill  for  arrears  of  dower,  the  court  refused 
her  apj>lication.(5) 

9  e.  A  widow  applied  for  dower  in  an  estate,  which  the  husband  had 
given  bond  to  convey,  and  the  administrator  conveyed,  under  direction 
of  the  Probate  Court,  paying  to  the  widow  her  distributive  share  of  the 
proeeed.s.  Held,  the  couit  could  not  notice  the  fact  of  such  pay- 
ment.(6)    ■ 

9/  A  widow  entitled  to  dower,  married  again,  and  the  real  estate 
in  which  she  \vas  dowable,  was  sold  by  the  administrator  of  her  first 
husband,  for  the  payment  of  his  debts,  she  not  joining  in  the  deed. 
The  purchaser  conveyed  the  same  to  the  second  husband,  who  sub- 
sequently mortgaged,  and  then  sold  it,  with  covenants  of  general 
warranty,  the  wife  not  joining  in  either  of  the  deeds.  Held,  by  the 
covenants  of  the  husband,  he  and  his  wife  were  estopped  from  claiming 
dower  in  the  estate  of  the  first  husband,  during  the  existence  of  their 
intermarriage.(7) 

9y.  Upon  a  petition  for  dower,  to  which  a  plea  was  put  in,  and  an 
order  made  for  sale  by  the  guardian ;  the  widow  was  in  court,  assent- 
ing to  the  proceedings,  received  part  of  the  price  for  her  dower  and 
attended  the  sale,  the  commissioner  giving  notice  that  a  clear  title 
would  be  conveyed,  she  claiming  no  dower.     Held,  a  bar.(8) 


(1)  Braxton  v.  Lee,   4  Heu.   &    M.    376 
Heth  V.  Cocke,  1  Rand.  344. 

(2)  Ellis  V.  Di.idy,  1  Smith,  354. 

(3)  Magee  v.  Mellon,  23  Miss.  685. 

(4)  Bourne  v.  Simpson,  9  B.  Mon.  454. 


(5)  Bullock  V.  Griffin,  1  Strobh.  Eq.  10. 

(6)  Wyatt  V  Brown,  8  S.  &  M.  365. 

(7)  Potter  V.  Potter,  1  Aug  43. 

(8)  Ellia  V.  Diddy,  1  Cart.  561. 


122 


DOWER.     HOW  BARRED. 


[CHAP.  X. 


9  h.  Where  an  execution  was  levied  upon  land,  and,  after  the  right 
of  redemption  had  expired,  the  land  was  sold  for  more  tlian  the  amount 
of  the  debt,  and  the  balance  paid  over  by  the  creditor  to  the  debtor's 
wife  and  children;  held,  she  was  still  entitled  to  dower  therein.(l) 

9  i.  Nor  is  a  widow  barred  of  dower  in  land  aliened  by  the 
husband,  by  accepting  a  share  of  his  estate  under  the  statute  of  distri- 
butions.(2) 

d  j.  So,  it  is  no  bar  of  dower,  that  the  widow  has  disposed  of  per- 
sonal property  of  the  husband,  of  greater  value  than  the  dower.(3) 

10.  The  mere  acceptance  of  a  conveyance  of  the  land  in  which  a 
widow  is  entitled  to  dower,  which  impliedly  disclaims  such  title,  will 
not  operate  as  a  bar  of  dower.  Thus,  where  A  the  widow,  and  B  the 
daughter,  of  the  deceased,  held  the  land  undivided,  and,  upon  B's  mar- 
riage, she  and  her  husband  conveyed  the  land  in  stJttlement  to  tiustees, 
of  whom  A  was  one,  describing  the  land  as  B's  propeity  ;  held,  no  bar 
of  A's  right  of  dower.(4) 

11.  Nor  will  a  widow  be  barred  of  her  dower,  by  attempting  to 
claim  under  a  deed  of  the  husband,  which  is  avoided  as  fraudulent. 
Thus,  where  a  husband  conveyed  fraudulently  to  the  use  of  himself 
and  his  children,  and  contingently  to  the  use  of  his  wife,  who  diil  not 
sign  the  deed,  and  after  the  husband's  death  a  creditor  successfully 
sought  to  avoid  the  deed,  the  wife  claiming  under  it ;  held,  she  should 
still  have  dower.(5) 

12.  It  will  be  seen  hereafter,  that  where  the  husband  is  a  tenant  in 
common,  the  right  of  dower  is  subject  to  the  incident  of  partition". 
(See  ch.  12,  s.  12  ;  ch.  51,  s.  31 ) 

13.  At  common  law,  the  deed  of  a  married  woman  is  ipso  facto 
void.(()) 

14.  In  England,  however,  a  widow  may  bar  herself  of  dower,  by 
joining  with  her  husband  in  a  fine  or  recovery^  but  not  by  joining  him 
in  a  mere  deed.  But  various  devices  have  been  there  resorted  to, 
chiefly  by  way  of  complicated  limitations,  to  effect  this  object.  These 
are  not  practised,  because,  as  will  be  seen,  not  necessary,  in  the  United 
States.(7)(a) 

15.  In  the  States  of  Vermont,  Connecticut,  Ohio,(/;)  Tennessee,(c) 
North  Carolina  and  Georgia,  a  widow  shall  be  endowed  of  those  lands 
only  of  which  the  husband  dies  seized. (8)     Hence,  if  a  man  purchase 


(1)  O'Brien  v.  Elliot,  3  Shepl.  125. 

(2)  Leihaweaver   v.    Sloever,    1  M.    &  S. 
160. 

(3)  Caruthersv.  Wilson,  1  Sm.  &  M.  527. 

(4)  Wilcox  V.  Hubard,  4  Muri.  346. 

(5)  Blow  V.  Maynard,  2  Leigh,  30. 


(6)  3  Mas.  351. 

(7)  1  Cruise,  139;   4  Kent,  50. 

(8)  Reeve,  40-1  ;  4  Kent,  41-2;  1  N.  0. 
Rev.  St.  613;  Prince's  Dig.  249;  Verm. 
Rev.  St.  289. 


(a)  By  St.  3  &  4  Wm.  4,  cli.  105,  dower  may  be  barred  bj'  any  transfer  of  the  land  made 
by  the  husband,  whether  in  the  way  of  conveyance  or  devise  ;  and  is  subject  to  all  debts 
and  incumbrances.  So,  also,  it  may  be  defeated  by  a  simple  declaration  to  that  effect,  con- 
tained in  tlie  conveyance  to  him,  or  the  instrument  of  transfer  by  hira.  And  a  devise  of  any 
part  of  the  land,  which  is  suhject  to  dower,  for  the  wife's  benefit,  bars  the  rigl:t,  unless  the 
contrary  is  expressly  declared  Otherwise  witii  a  devise  of  other  land,  or  of  personalty. 
The  act  does  not  applj'  to  women  who  were  married  previous  to  January  1,  1834. 

{h)  But  see  ch.  24.  sec.  15. 

(c)  But  not  where  the  purchaser  knows  that  the  husband's  intent  in  giving  the  deed  is  to 
bar  dower.     Brewer  v.  Conneli,  11  Humph.  500. 


CHAP.  X.J 


DOWER.  nOAV  BARRED. 


123 


lands,  own  tlietn  during  coverture,  but  afterwards  part  with  tbcm  ;  lie 
thereby  debars  the  widow's  dower  in  those  lands  by  his  own  sejjarate 
act,  and  witliout  any  consent  on  lier  part.  In  Virginia,  the  husband 
of  an  insane  woman  may  obtain  license  to  convey  Iree  of  dower;  re- 
serving a  portion  of  the  jirice  to  her.(l) 

16.  In  Pennsylvania,  Missouri  and  Tennessee,  dower  hs  barred  by  a 
sale  of  the  lands  under  a  mortgage  or  judicial  })rocess!  But  in  'Ven- 
nessec  a  widow  is  dowable  of  lands  of  her  husband  which  are  levied 
on  before  his  death,  but  not  sold.  In  Pennsylvania,  the  rule  above 
stated  seems  to  be  founded  upon  no  express  provision,  but  upon  a 
mere  construction  of  the  statutes  on  this  subject.  In  the  same  State, 
where  the  husband,  being  insolvent,  conveys  to  trustees  for  payment 
of  debts,  his  widow  shall  have  dower,  and  also  one  third  of  the 
rents  and  profits,  till  creditors  compel  a  sale  of  the  land  for  debts, 
though  by  such  sale  her  dower  will  be  lessened.  It  has  been  more  re- 
cently heid,  that  a  sale  for  payment  of  debts  does  not  debar  the  widow  of 
a  deceased  alienor  of  her  dowcr.(2)  Nor  an  assignment  in  insolvency 
under  a  compulsory  process,  and  a  conveyance  by  the  husband's  trus- 
tee.(8)  But  a  sale  of  land  uider  a  testamentary  power,  for  the  pay- 
ment of  debts,  discharges  the  land  from  dovver.(4) 

17.  Where  a  vendee  agreed  to  apply  part  of  the  purchase-money  in  sat- 
isfjaction  of  all  judgments  and  liens  against  the  vendor,  and  he  became 
the  purchaser  at  a  >herift''s  sale  under  one  of  those  judgments  after  the 
vendor's  death  ;  held,  this  did  not  divest  the  widow's  dower,  for  he  was 
bound  to  extinguish  the  debt  for  which  the  land  was  sold. (5) 

18.  A  widow's  thirds,  as  appraised  under  proceedings  in  the  or- 
plian's  court,  and  left  a  charge  on  the  land,  are  not  divested  by  a  sale 
of  the  land,  under  a  decree  of  the  orphan's  court,  as  the  property  of 
the  party  who  took  it  at  the  appraised  value.(6) 

IP.  In  North  Carolina  a  statute  provides,  that  any  fraudulent  con- 
veyance by  tlie  husband  shall  not  bar  dower.  In  the  same  State  the 
widow  has  dower  in  lands  sold  after  the  husband's  death,  under  a  Ji. 
fa.  tested  and  levied  before. (7) 

20.  In  Virginia,  dower  is  barred  by  a  bonaJidessHe  to  satisfy  a  prior 
incumbrance,  in  creating  which  the  wife  joined.  In  Kentucky,  dower 
is  suliordinate  to  a  creditor's  lien.(8)  In  Georgia,  a  conveyance  by  an 
officer  bars  dower,  as  if  made  by  the  husband,(9)  In  Indiana,  dower 
cannot  be  affected  by  an  execution  sale.  If  a  mechanic's  lien  accrue 
after  the  employer's  marriage,  and  the  employer  die  after  the  accruing 
of  the  lien,  the  right  of  dower  of  the  emplii3'er's  widow  will  be  para- 
mount to  the  lien  So,  in  Illinois,  dower  cannot  be  affected  by  a  me- 
chanic's lien,  and  the  widow  should  not  be  made  a  party  to  the  })ro- 
ceedings  to  entbrce  it,  if  she  has  no  other  interest  in  the  premises. (10) 


(1)  Vir.  Co.Je,  537. 

(2)  Keller  i-.  Michael,  2  Yoa.  300;  Kneider 
V.  Kiiiecier,  1  Miles,  220  ;  Liehaweavcr  v. 
Stoever,  1  W.  &  S.  ICO;  llellricli  v.  Ober- 
meyer,  15  Feiin.  113;  Rutlierl'urd  «.  Reed,  6 
Humph.  423. 

(3)  Eheiiei'.  Fisher,  13  Penn.  526. 

(4)  Mitchell  v.  Mitchell,  8  Barr.  126. 

(5)  Shurtz  V.  Thomas,  8  Barr,  359. 


(G)  Vnndcvor  I'.  Baker.  13  Perm.  121. 

(7)  N.  Car.  Rev.  Sts.  613  ;  Frost  v.  Ether- 
idge.  1   Dev.  30. 

(8)  M'Clure  v.  Harris,  12  B.  Mon.  261. 

(9)  Georgia  Sts.  1842,  p.  75. 

(10)  McMahaui;.  Kimhall,  3  Blaokf.  6;  Pi- 
fer  t;.  Ward,  8  lb.  252;  Shaeffer  v.  Weed,  3 
Gilra.  511. 


124 


DOWER.     HOW  BARRED. 


[CHAP.  X. 


In  Alabama  and  Arkansas,  dower  is  allowed  from   an  insolvent  es- 
tate.(l) 

21.  In  Maryland,  upon  a  creditor's  suit,  the  real  estate  of  the  debtor 
may  be  sold,  subject  to  do\ver.(2) 

22.  Where  the  land  of  which  a  husband  died  seized  is  sold  by  a 
court  of  equity,  free  from  the  claim  of  dower,  for  the  payment  of 
debts,  by  reason  of  the  insufficiency  of  the  personal  estate  to  pay  them, 
and  his  widow  is  a  party  to  such  proceeding,  she  will  be  barred  of  her 
right  of  dower  so  long  as  the  decree  remains  unreversed. (3) 

23.  In  New  York,  a  widow  cannot  claim  dower  in  the  surplus  arising 
from  a  sale  in  foreclosure,  where  the  husband  was  living  at  the  time  of 
making  the  decree,  and  when  the  sale  took  place.(4) 

24.  The  statutes  of  New  York,  relating  to  the  sale  of  the  real  estate 
of  deceased  persons,  under  a  surrogate's  order,  for  the  payment  of  debts, 
do  not  authorize  the  sale  of  a  widow's  estate  in  dower,  where  dower 
has  been  actually  assigned  to  her.  [Jewett,  C.  J.,  and  Bronson,  J,, 
and  HoYT,  J.,  dissenting.](5) 

25.  A  municipal  corporation  was  authorized  by  statute  to  take  lands 
for  the  public  use,  making  compensation  in  the  manner  prescribed  to  the 
respective  owners  and  persons,  entitled  to  or  interested  in  the  same, 
whereupon  the  corporation  was  to  become  seized  in  fee-simple.  Com- 
pensation for  a  portion  of  the  lands,  whereof  A  was  seized  in  fee,  was 
awarded  and  paid  to  him,  without  notice  of  the  inchoate  right  of  dower 
of  his  wife,  or  award  made  to  her  therefor.  Held,  her  interest,  for  the 
purpose  of  compensation  under  the  act,  was  not  to  be  considered  as  dis- 
tinct from  that  of  her  husband,  so  as  to  require  a  separate  estimation, 
and  that  he  was,  for  that  purpose,  to  be  deemed  the  entire  owner  of  the 
estate  ;  and  hence  she  was  not  entitled  to  dower.  The  right  of  dower, 
being  an  incident  to  the  marriage  relation,  was  merely  inchoate  during 
the  lifetime  of  the  husband,  constituting  no  vested  or  certain  interest, 
and  before  his  death  any  regulation  of  it  might  be  made  by  the  legis- 
lature, though  operating  to  divest  dower.  The  general  doctrine  was 
laid  down  that  the  power  of  the  state  to  take  private  property  for  public 
uses  results  from  its  right  of  eminent  domain,  which  is  only  restricted  by 
the  constitutional  provision,  that  just  compensation  shall  be  made  to 
the  owner.  In  cases  of  this  character,  the  husband  is  justly  considered 
the  entire  owner,  and  the  award  is  properly  made  to  him.  And  on 
payment  to  him  of  the  full  value  of  the  property,  the  title  vests  in  the 
public,  discharged  from  any  claim  of  dower.(6) 

26.  In  Maine,  one  whose  land  was  attached  on  mesne  process,  mar- 
ried. A  judgment  being  obtained,  the  execution  was  seasonably 
levied  on  the  lalid.  After  the  levy,  he  died.  Held,  the  widow  had 
no  right  of  dower.(7) 

27.  In  Delaware,(y)  a  statute  of  1816  provides,  that  a  widow  shall 
have  dower  in  all  lands  owned  by  the  husband  during  coverture,  free 
from  all  conveyances,  debts,  liens,  &c.,  excepting  any  lien  or  incum- 


(1)  Allen  V.  Allen,  4  Ala.  (N.    S.)    556; 

Crittenden  v.  Woodruff,  6  Eng.  82  ; v. 

Johnson,  lb.  94.     See  Outlaw  v.  Yell,  3  Eng. 
— ;  Nance  v.  Hooper,  11  Ala.  552. 

(2)  Mildred  v.  NeUl,  2  Bland,  355  ;  Ewings 
V.  Ennalls,  lb.  356. 


(3)  Gardiner  v.  Miles,  5  Gill.  94. 

(4)  Frost  V.  Peacock,  4  Edw.  Ch.  678. 

(5)  Lawrence  v.  Miller,  2  Comst.  245. 

(6)  Moore  v.  City,  &c.,  4  Sandf.  456. 

(7)  Brown  v.  Williams,  31  Maine,  403. 

(8)  Dela.  St.  1829,  167. 


CHAP.  X.] 


DOWKR.     now  BARRED. 


125 


brance  existing  before  tlic  passage  of  the  act.     And  it  is  said  that, 
previously,  dower  was  subject  to  debts. 

28.  In  Ohio,  it  is  provided,  that  the  husband  of  an  iiiscme  woman 
may  convey  his  land,  i'ree  from  tlie  incumbrance  of  dower.(l) 

29.  But  in  all  the  States,  the  most  usual  mode  of  baning  dower,  is 
by  a  deed(a)  of  the  husband  in  which  the  wife  joins,  aud  which  con- 
tains at  the  close  an  express  relinquishment  of  dower.  In  many  of  the 
States,  this  method  is  prescribed  by  express  statutes,  and  added  as  an 
exception  or  qualification  to  the  common  law  definition  of  dower.('.^)(i) 
In  Massachusetts,  the  practice  was  referred  by  one  distinguished  jurist 
to  early  colonial  and  provincial  acts,  and  by  another  to  New  England 
common  law.(8)  A  statute  of  Georgia  recites,  that  the  conveyance  of 
the  lands  of  a  feme  covert,  by  fine  and  recovery,  was  never  practised  in 
any  of  the  American  colonies.(4:) 

80.  In  many  States,  a  private  exaviination  of  the  wife  is  required  to 
render  her  release  of  dower  valid,  and  seems  to  have  been  practiced 
before  any  statutory  provisions  requiring  it.  Substantially  the  same 
provisions  are  made,  with  regard  to  a  release  of  dower,  and  a  convey- 
ance b}'-  the  wife  of  her  own  lands,  which  has  been  already  treated  of, 
and  to  the  remarks  concerning  which  the  reader  is  referred.(5)(c) 

31.  In  Massachusetts,  it  was  remarked  by  Parsons,  Ch.  J., (6)  that  a 
release  of  dower  has  been  sometimes  effected  by  a  separate  deed  of  the' 
wife,  subsequent  to  that  of  the  husband,  and  reciting  the  sale  by  him 
as  the  consideration.  But  the  Revised  Statutes  provide,  that  the  hus- 
band shall  join  in  the  subsequent  deed,  aud  such  deed  by  the  wife  alone 
is  void. (7)  And  Judge  Story  supposes,(8)  that  Judge  Parsons'  remark 
was  by  him  applied,  and  is  applicable  only  to  the  case,  where  the  wife's 
deed,  though  subsequent,  is  made  on  the  same  day  and  as  part  of  the 
same  transaction  with  the  husband's,  and  that -this  course  was  sometimes 
adopted,  but  not  so  generally  as  to  give  it  the  validit}'  of  a  usage.     If 


(1)  Ohio  St.  1836-7,  Mar.  29. 
(2)4  Kent,  58;    3   Mas.  351;    Lufkin  v. 
Curtis,  1  ?>  Mass.  223. 

(3)  Fowler  v.   Shearer,  7   Mass.   20-1 :  3 
Mas.  351-2. 

(4)  A  nth.  Sbep.  592. 

(5)  Supra,  ch.  7  ;  Anth.  Sbep.  593. 


(G)  7  Mass.  20 ;  ace.  Frost  v.  Deerin^,  8 
Shepl.  156. 

(7)  Mass.  Rev.  St.  410;  Page  ■;;.  Page,  6 
Cush.  196.  So  in  Michigan, — Rev.  St.  264; 
see  Sts.  1849,  60;  and  Maine, — Ilev.  St.  392; 
and  Wisconsin, — Wise.  lb.  334. 

(8)  3  Mas.  363. 


(a)  An  unsealed  release  is  bad.     Manning  v.  Laboree,  33  Maine,  343. 

(h)  That  is,  "a  widow  shall  be  endowed,"  &c.,  unless  she  have  parted  with  her  right,  in  the 
method  prescribed.  In  Massachusetts,  tlie  early  colonial  and  provincial  statutes,  are  said 
to  imply  and  recognize,  though  not  create,  the  power  of  a  feme  covert  thus  to  bar  her 
dower.     Col.  St  1644;    Prov.  St.  9  Wm.,  ch.  7  ;  3  Mas.  351-2. 

It  has  been  held,  that  statutes  providing  for  this  mode  of  releasing  dower,  supersede  all 
other  methods.  French  v.  Peters.  33  Maine,  396.  In  Indiana,  a  widow  marrying  again, 
cannot  alienate  her  dower.     Rev.  Sts.  Descent,  sec.  18. 

(c)  It  has  been  held,  that  the  certiQcate  of  acknowledgment  need  only  be  in  the  usual 
form,  and  substantially  conformable  to  the  statute.  Brown  v.  Farran,  3  Ohio,  15.  See 
Dundas  v.  Hitchcock,  12  How.  256;   Ravarty  v.  Fridee,  3  McLean,    230. 

A  statute  requiring  in  any  release  of  dower,  or  other  conveyance  of  real  estate  by  a  married 
woman,  a  ceriiticate  of  a  magistrate  on  the  deed,  that  the  wife,  on  a  private  examination, 
apart  from  her  husband,  acknowledged  tiiat  she  signed  and  delivered  the  same  "  as  her  vol- 
untary act  and  deed,  freely,  without  any  fear,  threats  or  compulsion  of  her  husband,"  is 
sufficiently  complied  witii,  if  tiie  words  "  Ireely  and  of  her  own  accord,"  are  substituted  for 
the  words,  "  as  her  voluntary  act  and  deed,  freely."  Duadaa  v  Hitchcock,  12  How. 
U.  S.  256. 


L26 


DOWER.     HOW  BARRED. 


[CHAP.  X. 


the  wife's  deed  be  seven  months  subsequent  to  the  husband's,  ^iven 
after  two  mesne  conveyances,  for  a  new  consideration,  and  not  reciting 
the  husband's  sale  as  the  consideration,  it  is  void.  This  is  not  joining 
in  the  deed  of  the  husband,  according  to  the  words  of  tlie  statutes. 
Nor  does  the  husband's  mere  assent  make  any  difference.  So,  a  release 
indorsed  upon  the  husband's  deed,  in  consideratitm  of  the  sura  men- 
tioned in  the  deed,  is  insufficient.(l) 

82.  In  Kentucky,  the  wife  may  release  by  a  subsequent  deed.(o)  But 
in  general,  the  sole  deed  of  a  wife  is  void.  In  Ohio,  she  may  join  with 
the  husband's  attorney.(2) 

83.  A.  release  of  dower  before  marriage  is  void. (3) 

84.  In  New  Hampshire,  the  wife  may  release  alone.  So,  although 
an  infant.     The  AVife  cannot  release  to  the  husband. (4) 

85.  In  Massachusetts,  merely  joining  in  the  husband's  deed  is  insuf- 
ficient, without  words  of  release.  So,  in  Maine,  a  wife  does  not  re- 
lease her  dower,  unless  she  uses  apt  words  to  express  such  intention. 
The  words,  "in  token  of  her  free  consent,"  inserted  in  the  conclusion 
of  the  deed,  are  not  sufficient.(5)  But  in  Maryland  the  deed  may  bar 
dower,  though  the  wile  be  not  named  in  it.(6)  So,  in  Ohio,  the  wife 
need  not  join  in  the  covenants,  nor  expressly  release  her  dower.(7) 

80.  The  wife  need  not  sign  the  deed  ia  person.  A  signing  by  any 
third  })erson,  or  by  the  husband,  if  done  in  her  presence  and  under  her 
direction,  will  be  sufficient.  And,  in  case  the  witnesses  to  her  signa- 
ture fiil  to  prove  it,  her  own  admissions  are  competent  evidence.(8) 

37.  The  demandant  in  a  writ  of  dower  is  not  barred  by  a  release  of 
dower  made  by  her  to  a  third  person  under  whom  the  tenant  does  not 
claim. (9) 

88.  Where  a  wife  releases  her  dower,  and  afterwards  the  purchaser 
from  the  husband  recovers  damages  of  him  for  a  breach  of  the  cove- 
nant that  he  had  a  right  to  convey,  there  being  attachments  on  the 
land  at  the  time  of  conveyance,  the  i-elease  of  dower  becomes  void,  be- 
cause the  recovery  in  this  action  debars  the  purchaser  from  afterwards 
claiming  anything  b}^  his  deed.  So,  where  a  wife  joins  in  the  deed  of 
her  husband  and  releases  her  dower,  and  an  execution  against  him  is 
afterwards  levied  upon  the  land,  and  the  creditor  recovers  it  from  the 
purchaser,  on  the  ground  that  the  conveyance  was  fraudulent,  the  right 
of  dower  revives,  and  the  widow  may  recover  it  from  such  creditor  or 
his  assigns.(lO) 

39.  Where  land  was  mortgaged  to  secure  a  debt,  in  which  mortgage 
the  wife  joined,  and  was  subsequently  sold  under  a  judgment  against 


(1)  Powell  V.  Monson,  &c.,  3  Mas.  347; 
Shaw  V.  Riiss,  1  Sliej)!.  32;  French  v.  Peters, 
33  Maine.  396. 

(2)  1  Ky.  Rev.  L.  436;  Thompson  v.  Pee- 
bles. 6  Dana,  391;  Glenn  v.  Bank,  &c,  8 
Ohio,  172  ;  French  v.  Peters,  33  Maine, 
396. 

(3)  Hastings?;.  Dickinson,  7  Mass.  155. 

(4)  Ela  «.  Card,  2  N.  H.  176;  Rowe  v. 
Hamilton,  3  Greenl.  63  ;  N.  H.  Rev.  St.  297. 
In  Kentucky,  release  of  dower  by  an  infant 


feme  is  voidable.     Oldham  v.  Sale,  1  B.  Monr. 
77. 

(5)  Stevens  v.  Owen,  25  Maine,  94. 

(6)  3  Mas  347  :  Catlin  v.  Ware,  9  Mass. 
218  ;  Learned  v.  Ciatler,  18  Pick.  9  ;  1  Md.  L. 
128  ;   Stevens  v.  Owen,  25  Maine.  94. 

(7)  Smith  V.  Hardy,  16  Ohio,  191. 

(8)  Frost  V.  Deerin,?,  8  Siiepl.  156. 

(9)  Robinson  v.  Bat.-s,  3  Met.  40. 

(10)  Stinson  v.  Sumner,  9  Mass.  143;  Rob- 
inson V.  Bates,  3  Met.  40. 


(a)  Not  by  parol,  though  privately  examined.    Worthington  v.  Middleton,  6  Dana,  300. 


CHAP.  X.]  DOWER.     TIOW  BARRED.  127 

the  husband,  at  the  suit  of  a  stranger  to  the  mortgage  ;  held,  tlie  wife 
was  not  divested  of  lier  dower,  though  the  eonrt  liad  ordered  the  pur- 
chase-money in  part  to  be  applied  to  the  mortgage  debt.(l) 

40.  The  wife  may  validly  join  in  a  lease  as  well  as  an  absolute  deed. 
In  such  case  she  shall  be  endowed  of  the  rent.(2) 

41.  In  Maine,  the  wife  of  one  under  guardianship  nu]^'  release  her 
dower  al(ine.(3)  In  Alabama,(a)  by  statute,  an  injant  may  release  dower. 
In  Wisconsin,  the  guardian  of  an  infant.  So,  in  Maryland,  Chancery 
may  aflirm  the  release  of  dower  by  an  infant.  But  it  has  been  held  in 
New  York  and  Ohio,  that  a  release  of  dower,  though  a  substitute  for 
the  old  process  of  recovery,  docs  not  so  far  partake  of  the  nature  of 
the  latter,  as  to  render  valid  the  release  of  an  infant.  Nor  does  a  pri- 
vate examination  give  validity  to  such  release.  Nor  is  a  release  of 
dower,  like  a  fine,  made  valid  by  mere  consent  of  the  husband, (4) 

42.  It  has  been  seen,  that  in  equity,  which  regards  a  conveyance 
agreed  to  be  made,  as  actually  made,  dower  may  sometimes  be  barred 
even  without  any  release.  On  the  other  hand,  equity  will  sometimes 
allow  dower  even  after  a  release,  where  the  deed  was  merely  prepara- 
tory to  another  deed  which  has  never  been  made. 

43.  Thus,  where  several  tenants  in  common,  with  their  wives,  con- 
veyed lands,  previously  lotted  out,  to  a  trustee,  to  be  sold  in  lots ;  held, 
the  widow  of  a  deceased  tenant  should  have  equitable  dower  in  those 
lots  which  the  trustee  had  neither  conveyed  nor  contracted  to  convey. (5) 

43  o.  Where  a  widow,  having  a  right  of  dower  in  land  of  her  de- 
ceased husband,  sells  the  land,  while  acting  as  administratrix  upon  his 
estate,  to  a  person  whom  she  afterwards  marries,  by  whom  it  is  again  sold 
by  a  warranty  d(?ed,  in  which  she  joins  "in  token  of  relinquishing  her 
right  of  dower  in  the  premises,"  her  release  divests  her  of  all  the  right 
of  dower  which  she  has  in  the  land,  either, by  reason  of  her  first  or 
second  rnarriage.(6) 

43 i.  A  wife  who  joins  in  a  deed  with  her  husband  is  no  party 
thereto,  except  for  releasing  her  dower,  and  is  not  thereby  estopped 
from  setting  up  a  subsequent  title. (7) 

43  c.  A  wile  uniting  with  her  husband  in  conveyance  of  his  land,  iu 
whicii  she  has  no  interest  but  her  right  of  dower,  incurs  no  obligation  by 
reason  of  any  collateral  and  merely  personal  covenant  inserted  in  the 
deed,  nor  by  the  representations  it  may  contain.  Such  covenants  are 
the  acts  of  the  husband  alone.(8) 

43  d.  A  release  of  dower  may  be  either  gratuitous  or  for  a  conside- 
ration paid  to  the  wife.  And  though  this  much  exceed  the  value  of 
the  right  relinquished,  the  transaction  will  not  be  adjudged  void  unless 
there  be  a  want  of  good  faith  in  her.(9) 

(1)  Avery,  J,  dissenting.     Taylor  t>.  Fow-    Jones  v.   Todd.  3   Mas.   361,    356;  Hughes 


ler,  18  Ohio,  567. 

(2)  llorliert  v.  Wren.  7  Crancli.  370.  See 
Hall  V   liiill,  2  M'Cord,  Clia.  280. 

(3>  Me.  St.  1853,  29. 

(4J  St.  of  Ala.  18;JG,  No.  22  ;  Md.  L.  1095  ; 
Priest  V.  Cummiugs,  16  Wend.  617,  20,  331; 


V.  Watson,  10  Ohio,  137;   Wise.  Kc-v.  St.  334. 

(5)  Hawley  v.  James.  5  Paige,  318. 

(6)  Usher  V.  Richardson,  29  Maine,  415. 

(7)  Blair  i;.  Harrison,  11  111.  384. 

(S)  Shelton  v.  Deeriiig,  10  B.  Mon.  405. 
(9)  Hoot  V.  Sorrell,  U  Ala.  386. 


(a)  III  the  same  State,  a  deed,  to  bar  dower,  must  bo  signed  in  presence  of  two  or  more 
creditable  witnesses,  or  acknowledged.  Clay,  174.  If  made  out  of  the  State,  it  may  be 
acknowledged  before  a  notary,  or  a^udge  of  a  court  of  record.     lb. 


128 


DOWER.     HOW  BARRED. 


[CHAP.  X. 


44.  A  release  of  dower  can  operate  only  as  a  release,  accompanying 
the  conveyance  of  another,  and  ceasing  to  operate  with  the  latter  ;  not 
as  the  transfer  of  an  independent  estate.  Thus,  where  a  husband, 
whose  land  is  bound  by  the  lien  of  a  judgment,  conveys  the  land  with, 
a  release  of  dower,  and  it  is  afterwards  sold  under  the  judgment,  the 
purchaser  from  the  husband  cannot  claim  as  an  assignee  of  the  wife,  or 
as  deriving  a  distinct  estate  from  her,  against  the  execution  purchaser. 
So,  upon  a  sale  of  mortgaged  lands,  the  vendee  takes  them  clear  of 
dower,  if  released.  But  if  the  mortgage  is  paid,  never  takes  effect,  or 
ceases  to  operate,  the  right  of  dower  revives.  Where  the  husband 
only  owned  a  right  of  redemption,  this  alone  passed  or  was  incumbered 
by  the  mortgage,  and  his  wife's  dower  could  not  have  been  released  to  any 
greater  extent.  And  where  that  right  expired  by  lapse  of  time,  the 
mortgage  became  inoperative,  and  ceased  to  be  a  conveyance  of  the  hus- 
band's estate,  and  therefore  could  no  longer  operate  as  a  bar  to  dower. 
So,  a  widow  is  not  barred  of  her  claim  for  dower  against  a  mortgagee 
who  has  foreclosed,  if  she  did  not  join  in  the  mortgage,  by  her  release 
of  dower  to  the  purchaser  of  the  equity  of  redemption, (1) 

45,  A  very  common  method  of  barring  dower,  is  by  devise  or  bequest 
from  the  husband  to  the  wife.  Upon  this  subject,  the  English  law  has 
been  thus  stated  :  Every  devise  or  bequest  in  a  will  imports  a  bounty, 
therefore  cannot,  in  general,  be  averred  to  be  given  as  a  satisfaction  for 
that  to  which  the  devisee  is  by  law  entitled  ;  hence  a  devise  is  no  bar 
of  dower,  unless  so  expressed  in  the  will,  either  at  law  or  in  equity. 
The  court  will  go  as  far  as  it  can  not  to  exclude  the  claim  to  do\ver.(2) 
Several  English  cases  sustain  this  doctrine, 

46,  A  person  being  indebted,  devised  part  of  his  lands,  which  were 
subject  to  a  satisfied  mortgage,  to  his  wife,  but  not  in  bar  of  dower,  and 
the  residue  to  his  executors  till  his  debts  were  paid.  The  wife  having 
recovered  dower  at  law,  the  heir  brings  a  bill  in  equity  for  relief  Held, 
the  devise  was  no  bar  of  dower.(3) 

47.  A  devised  lands  to  his  wife  for  life,  and  other  lands  to  his 
brother  in  fee.  The  Former  lands  were  of  greater  value  than  the 
wife's  dower.  Held,  both  in  law  and  equitj^,  the  devise  was  no  bar  of 
dower.(4) 

48,  More  especiall}^  does  this  rule  appl}^,  where  the  devise  is  made 
for  the  term  of  widowhood  of  the  wife,  or  is  in  any  other  respect  less 
beneficial  than  dower,(5) 

49.  A  devises  to  his  wife  lands  for  her  widowhood,  afterwards,  with 
all  his  other  lands,  to  trustees  for  a  term  of  years,  for  payment  of  debts 
and  legacies  ;  and  directs,  that  after  the  expiration  of  two  3'ears  of  the 
term,  the  trustee  shall  permit  her  to  receive  the  rents  and  profits  of 
another  farm,  for  the  rest  of  the  term  during  her  widowhood.  The 
widow  having  recovered  her  dower  at  law,  and  an  application  in  Chan- 
cery for  an  injunction  having  been  granted  ;  upon  a  rehearing  in  the 
latter  court,  it  was  held,  that  even  at  law  the  devise  was  no  bar  of. 
dower,  and,  if  it  were  so  at  law,  it  would  not  be  in  equit\^  ;  and  the 


(1)  Douglas  V.  M'Coy,  5  Ohio,  527  ;  Pride 
V.  iioyce,  Rice,  275  ;  Holdicii  v.  Holdich,  2 
Y.  &  Coll.  Cha.  18  ;  Ellis  v.  Lewis,  3  Hare, 
310;  Blain  v.  Harrison,  11  Illin.  384;  Little- 
field  V.  Crocker,  30  Maine,  192. 

(2)  1  Cruise,  139;  Walk.  Intro.  325:  Dick- 


son V.  Robinson,  Jac.  503 ;  Hilliard  v.  Bin- 
ford,  10  Ala.  977  ;  Church  v.  Bull,  2  Denio, 
430. 

(3)  Hitchin  v.  Hitchin,  Prec.  in  Cha.  133. 

(4)  Lemon  v.  Lemon,  8  Vin.  Abr.  366. 

(5)  La^er  v.  Lasher,  13  Barb.  106. 


CHAP.  X.] 


DOWER.     HOW  BAIUIKD. 


129 


decree  was  reversed. (a)    Tliis  judgment  was  afterwards  aflirnied  by  the 
House  o{'Lords.(l) 

50.  Devise  of  land,  in  trust  to  sell,  and  pay  part  of  the  proceeds  to 
the  widow.  Held,  she  need  not  elect  between  the  devise  and  her 
dowi>r.(2)(6) 

51.  But  where  a  devise  or  bequest  is  expressly  given  as*  a  satisfac- 
tion, substitute,  or  recompense  for  dower,  or  upon  condition  that  the 
wife  shall  not  claim  dower,  she  is  bound  to  elect  between  the  two,  and 
an  election  of  one  is  a  perpetual  waiver  of  the  other.  Nor  is  it  material 
whether  the  pioperty  given  by  will  consists  of  real  estate  or  personal, 
exce})t  perhaps,  that  to  make  personal  property  a  bar  of  dower,  stronger 
proof  of  an  intent  to  that  effect  is  required,  than  in  case  of  a  devise  of 
lands.  But  if,  after  the  widow  has  elected  and  enjoyed  the  provision 
by  will,  it  from  any  cause  fails,  as  for  instance,  if  personal  property, 
from  which  an  annuity  is  to  be  raised,  becomes  exhausted,  it  seems  she 
may  claim  her  dower,(3)  In  Massachusetts,  Maryland(c)  and  Virginia, 
express  statutes  so  provide.(4)  But  where  a  testator  devised  to  his 
wife  his  whole  estate  during  ividowhood,  and  she  makes  no  renunciation 
of  the  devise,  but  afterwards  forfeits  it  by  marriage,  she  shall  not  have 
dower.  (5) 

52.  So,  in  New  York,  where  a  testator,  in  lieu  of  dower,  devised 
certain  property  to  his  wife,  and  directed  that  his  sons  should  annually 
deliver  to  her  a  certain  quantity  of  wood ;  and,  after  the  widow  had 
accepted  the  devise,  and  for  many  years  enjoyed  the  property,  the  sons 
failed  to  deliver  the  wood  as  directed  :  held,  the  widow  could  not  claim 
dower,  but  her  remedy  was  under  the  will,  against  those  chargeable 
with  its  execution  :  that,  although  the  wife  would  not  be  bound  by  a 
post-nuptial  agreement  merely,  yet  she  would  be  bound  by  an  election  to 
avail  herself  of  such  agreement ;  and,  in  this  respect,  a  devise  stood  on 
the  same  footing  with  a  settlement  made  upon  the  wife  after  mar- 
riage.(6)((Z) 


(1)  Lawrence  v.  Lawrence,  1  Lord  Rav. 
438 ;  2  Vern.  365 ;  3  Bro.  Pari.  Ca.  483. 

(2)  Ellis  V.  Lewis,  3  Hare,  310. 

(3)  Leake  v.  Randall,  4  Rep.  4  a ;  Bush's 
Ca.se,  Dyer,  220;  Gosling  v.  Warburton,  Cro. 
Eliz.  128.     (See  Ayres  v.  Willis,  1  Ves.  sen. 


230.) 

(4)  Mass.  Rev.  St.  411 ;  Anth.  Shep.  451; 
1  Vir.  Rev.  0.  171. 

(5)  Vance  v.  Campbell,  1  Dana,  229. 

(6)  Kennedy  v.  Mills,  13  Weud.  553;  lb. 
556.  • 


(a)  Because,  as  is  said,  the  matter  had  been  previously  settled  at  law.    1  Ld.  Ray.  438,  n. 

(6)  In  a  very  late  case  in  Virginia,  a  husband  conveyed  land  with  warranty,  the  wife  not 
joining  in  the  deed,  and  devised  all  his  estate  to  her,  remainder  to  her  children.  Held,  she 
should  take  the  devise,  and  also  dower  in  the  land  sold.  Higginbotham  v.  Cromwell,  8 
Gratt.  83. 

(c)  "If  nothing  sh.ill  pass  by  such  devise."  In  the  same  State,  if  the  will  gives  her  both 
personal  and  real  property,  she  must  renounce  the  whole  in  order  to  claim  her  legal  rights. 
Md.  L  407. 

(rf)  But,  in  the  same  State,  where  the  testator  devised  his  whole  property  to  his  wife  for 
life  or  widowhood,  remainder  to  his  children,  and  she  occupied  some  j^ears  under  the  will 
and  then  married  again;  held,  she  should  have  dower.  Bull  v.  Church,  4  Hill,  206.  See 
Fuller  V.  Yates,  8  Paige,  325 ;  Lewia  v.  Smith,  11  Barb.  152  ;  Flagler  v.  Flagler,  11  Paige, 
457. 

A  testator  devised  all  his  real  and  personal  estate  to  his  wife,  "during  her  life,  or  so  long 
as  she  should  remain  his  widow,"  and  after  her  decease,  or  remarriage,  to  his  children. 
The  wife  survived  him,  entered  and  occupied  under  the  will  for  several  years,  and  then  mar- 
ried a  second  husband.     Held,  she  was  entitled  to  dower.     Church  y.  Bull,  2  Denio,  430. 

Where  a  testator  owned  the  entire  estate  in  certain  premises,  subject  to  dower,  and  de- 
vised a  part  of  the  premises  to  the  person  having  the  right  of  dower,  and  the  residue  to  A, 

YoL.  I.  9 


130 


DOWER.     HOW  BARRED. 


[CHAP.  X. 


53.  A  provision  by  will,  though  not  expressed  to  be  a  bar  of  dower, 
shall  still  operate  as  such,  if  its  fulfilment  is  manifestly  inconsistent 
therewith.  It  is  said,  tliat  no  person  shall  dispute  a  will  who  claims 
under  it,  and  this  rule  is  as  applicable  to  a  dowress  as  to  any  other 
person.  Hence,  where  the  dowable  estate  is  so  divided,  that  the  claim 
of  dower  makes  a  material  change  in  the  will  itself,  the  widow  is  barred. 
There  is  no  difference  between  declaring  that  she  shall  not  hold 
both,  and  devising  so  that  she  cannot  hold  both  without  disturbing  the 
will.(l) 

54.  This  doctri-ne  seems  to  have  been  first  settled  in  courts  of  equity, 
and  a  devise  has  therefore  been  called  an  equitable  bar.  But  the  lan- 
guage of  the  modern  cases  and  the  better  opinion  seem  to  be,  that  if 
the  wife  has  fairly  and  understandingly,  with  a  full  knowledge  of  the 
facts,  made  her  election  between  her  dower  and  the  testamentary  pro- 
vision, and  in  favor  of  the  latter,  she  will  be  held  to  her  election  at  law 
as  well  as  in  equity.  It  is  said,  there  is  no  difference  in  principle  be- 
tween the  courts  of  law  and  equity  on  this  subject,  but  the  difficulty  of 
reaching  the  justice  of  the  case  has  frequently  thrown  these  questions 
into  equity.(2) 

55.  Equity  will  not  interpose  to  compel  an  election,  unless — 1,  the 
devise  is  expressed  or  strongly  and  necessarily  implied  to  be  a  substi- 
tute ;  or  2,  clearly  inconsistent  with  dower ;  or  3,  where  the  whole 
will  would  be  overturned  by  an  allowance  of  dower.(3) 

65  a.  It  is  said,  a  devise  to  others  of  all  the  testator's  real  estate,  is 
not  necessarily  inconsistent  with  the  right  of  dower,  as  such  a  devise  is 
to  be  understood  as  subject  to  all  lawful  claims  upon  the  land,  includ- 
ing dower.(4) 


(1)  4  Kent,  56;  Villa,  &c.  v.  Galway,  1 
Bro.  Rep.  293  n.;  Gretton  v.  Howard,  1 
Swanst.  413  ;  Hamblett  v.  Hamblett,  6  N. 
H.  333 ;  Weeks  v.  Patten,  18  Maine,  42  ; 
Stark  V.  Hunton,  Saxt.  (N.  J.)  216;  Church 
?;.  Bull,  2  Denio,  430;  Lasher  v.  Lasher,  13 
Barb.  106. 

(2)  Kennedy  v.  Mills,    J  3  Wend.  555;    4 


Kent,  56  ;  French  v.  Davies,  2  Ves.  jun.  578. 
(But  see  Pickett  v.  Peavey,  2  Con.  S.  C.  748.) 
Edwards  v.  Morgan,  13  Price,  782;  Taylor 
V.  Taylor,  1  Y.  &  Coll.  Cha.  727. 

(3)  Kennedy  v.  Nedrow,  1  Dall.  418. 

(4)  Per  Walworth,  Ch.,  Church  v.  Bull,  2 
Denio,  430. 


but  without  declaring  his  intention,  in  his  will,  to  dispose  of  the  whole  estate,  including  the 
right  of  dower,  or  that  the  dowress  should  relinquish  either  such  dower  or  her  devise,  and 
no  such  intention  was  deducible  by  clear  and  manifest  implication  from  the  will ;  held,  the 
presumption  was,  that  the  testator  intended  only  to  devise  to  A  his  own  estate  in  the  pre- 
mises, subject  to  the  right  of  dower  therein,  and  that  the  dowress  was  not  put  to  her  elec- 
tion.    Leonard  v.  Steele,  4  Barb.  20. 

The  principal  trusts  of  a  will,  some  years  after  the  testator's  death,  were  declared  void  by 
a  vice-cliancellor ;  but  the  payments  made  previously  were  sanctioned  by  the  decree,  and 
the  widow  was  required  to  elect  between  her  dower  and  certain  valid  provisions  of  the  will. 
Appe.ils  were  taken,  and  the  suit  protracted,  pending  which  the  executors  continued  to 
make  payments,  and  the  widow^  having  made  no  election,  died  before  the  decision,  which 
affirmed  the  decree.  In  a  suit  by  the  executor  against  the  assignee  of  one  of  the  next  of 
kin  ;  held,  the  latter  could  not  object  to  the  payments  made  prior  to  the  decree;  that  the 
payments  made  subsequently  were  invalid,  and  must  be  disallowed  ;  and  that  the  widow's 
administrator  might  now  make  the  election  granted  to  her  by  the  decree.  Howland  v. 
Heck.scher,  3  Sandf.  Ch.  519. 

Where  a  husband  gave  to  his  wife  by  will,  in  lieu  of  dower,  a  decent  and  comfortable 
support  out  of  his  estate,  in  sickness  and  in  health,  during  her  lifetime,  leaving  the  residue 
of  his  estate  to  his  two  children;  held,  such  allowance  was  not  to  be  measured  by  the  sum 
necessary  to  support  her  in  a  boarding  house,  but  that  she  sliould  have  sufficient  to  main- 
tain her  in  house-keeping  at  the  place  of  her  residence,  and  in  the  manner  to  which  she  had 
been  accustomed  while  living  with  her  husband;  such  sum  being  less  than  the  interest  on 
one-lhird  of  the  testator's  estate.     ToUey  v.  Greene,  2  Sandf.  Ch.  91. 


CHAP.  X.] 


DOWER.  HOW  BARRED. 


131 


56.  Instances  of  inconsistency,  arc  where  the  interest  of  one-tliird 
of  the  amount  of  sales  of  the  whole  land  is  given  to  the  widow  for  life; 
so,  where  the  rents  of  lands  are  charged  with  the  maintenance  and 
education  of  children,  and  provision  is  made  for  selling  lands  to  pay 
debts.(l)  . 

57.  A  testator  devises  one-third  of  his  estate  to  Irr^rwife,  the  other 
two-thirds  to  his  two  children.  Held,  the  widow  could  not  claim  both 
the  devise  and  her  dower.(2) 

58.  A  devised  to  his  wife  an  annuity  of  200^.,  to  be  issuing  out  of 
his  lands,  with  power  of  distress  and  entry;  subject  thereto,  he  devised 
his  real  estates  to  his  daughter  in  strict  settlement ;  and  directed  all  his 
personal  estate  to  be  invested  in  land  and  settled  to  the  same  uses.  It 
was  held  in  cquit}",  that  the  claim  of  dower  was  inconsistent  with  the 
will :  1.  Because  it  would  deprive  the  trustees  of  their  possession  of  a 
part  of  the  land,  whereas  by  tlie  will  they  were  to  hold  the  whole,  sub- 
ject to  the  annuity  and  distress,  and  the  widow  was  to  enter,  only  upon 
non-payment.  2.  Because  it  would  diminish  the  annuity  itself,  inas- 
much as  by  entering  upon  a  third  of  the  land  in  right  of  her  dower, 
the  widow  would  sink  so  much  of  her  annuity  as  that  third  ought  to 
bear  in  proportion.  The  annuity,  being  charged  upon  the  whole  land, 
could  not,  by  an  equitable  marshalment,  be  thrown  upon  the  remain- 
ing two-thirds.(3) 

59.  In  some  later  cases,  the  charging  of  an  annuity  upon  lands  has 
been  held  not  to  be  a  bar  of  dower.(a) 

60.  Where  a  testator,  not  noticing  his  wife's  title  to  dower,  devis3S 
to  her  the  residue  of  his  personal  estate,  this  is  no  bar  of  dower,  be- 
cause the  claim  of  the  latter  does  not  break  in  upon  the  will.(4) 

61.  And  if  only  a  part  of  the  lands  subject  to  dower  are  devised  to 
the  widow,  she  may  claim  her  dower  in  the  residue,  unless  the  intent 
is  clearly  otherwise.  So,  the  devise  of  a  contingent  remainder  in  the 
whole  lands  to  the  widow  is  no  bar  of  her  immediate  title  to  dower,  hy 
implication,  because  the  two  estates  are  not  incompatible.  Nor  will 
the  widow  be  barred  of  her  dower,  although  there  is  a  probability  that 
the  husband  was  ignorant  of  her  right  to  claim  it. 

62.  Where  the  husband  devises  his  lands,  or  all  his  estate,  to  trus- 
tees, charged  with  an  annuity  to  the  widow  ;  dower  being  a  para- 
mount claim,  equity  will  not  presume,  from  his  having  disposed  of  all 
his  own  property,  that  he  meant  also  to  dispose  of  what  Avas  not  his 
own,  unless  peculiar  circumstances  justify  such  construction. (5) 

63.  If  the  lands  subject  to  dower  would  be  insufficient  to  meet  the 


(1)  Duncan  v.  Duncan,  2  Teatcs,  302; 
Herbert  v.  Wren,  7  Cranch,  370. 

(2)  4  Dane,  680. 

(.•?)  Villa  Real  v.  Galway,  1  Bro.  Rep.  292. 
See  Reynard  v.  Spence,  4  Beav.  103. 

(4)  Ayres  r;.  Willi.»,  1  Ves.  230.  In  tliis 
case,  the  claim  of  a  widow  as  devisee  is  com- 
pared witli   that  of  a  child.      (See  further, 


Chalmers  v.   Stovil,  2  Ves.   <fe  Beam.   222; 
Dickson  V.  Robinson,  Jac.  503.) 

(5)  Lord  Dorchester  v.  Kffingham,  Coop. 
324;  Hitciiins  v.  llitchins.  Freem.  241;  In- 
cledon  v.  Northcote,  3  Atk.  435  ;  French  v. 
Davies,  2  Ves.  jr.  577,  581  ;  Foster  v.  Cook, 
3  Br.  351  ;  Wood  v.  Wood,  5  Paige,  59G. 


(a)  Where  a  widow  is  to  elect  between  her  dower  and  an  annuity,  receiving  the  latter  for 
five  years  has  been  held  not  conclusive  evidence  of  an  election.  Reynard  v.  Spence,  4 
Beav.  103. 


132  DOWER.     ROW  BARRED.  [CHAP.  X. 

cliarges  made  upon  them,  dower  would  probably  be  barred  ;  and,  it 
seems,  a  reference  may  be  granted  to  ascertain  the  fact.(l) 

64.  A  widow,  receiving  a  devise  for  her  release  of  dower,  is  deemed 
a  purchaser,  and  shall  be  fully  paid  before  other  legatees  ;  even  though 
the  legacy  be  not  the  only  consideration  of  such  release.  Her  claim  is 
even  paramount  to  that  of  creditors.  By  relinquishing  her  dower,  she 
discharges  a  highly  favored  debt  due  from  the  testator ;  and  relieves 
his  real  estate  from  a  lien  in  her  favor,  which  would  have  preference 
to  any  that  he  himself  could  have  created.  Hence,  where  the  widow 
filed  a  creditor's  bill  in  Chancery, (a)  praying  a  sale  of  the  real  estate, 
for  payment  of  debts ;  and  subsequently  presented  a  petition,  alleging 
that  she  accepted  a  devise  from  the  husband  improvidently,  that  the 
estate  was  greatly  charged  with  debts,  and  that  she  should  receive  no 
compensation  for  her  dower,  and  praying  to  be  let  in  to  the  latter ;  it 
was  held,  that  although  she  could  not  waive  her  election  of  the  devise, 
affirmed  by  her  bringmg  this  suit,  in  the  absence  of  any  fraud  or  mis- 
take; yet,"' according  to  the  language  of  the  statute,  (of  Maryland,)  she 
was  "  a  purchaser  with  fair  consideration,"  both  at  law  and  in  equity, 
and  that  the  creditors,  having  joined  with  her  in  an  application  for 
sale,  could  not  now  claim  to  be  paid  in  preference  to  her,  but,  in  order 
to  have  equity,  must  do  equity,  and  allow  her  legacy  in  full.(2)(6) 

65.  Where  devises  and  legacies  are  proportionably  abated,  to  make 
up  the  portion  of  a  post-testamentary  child,  the  widow's  legacy  shall  be 
taken  into  account,  in  estimating  the  amount  to  be  deducted  from  eacti 
of  the  other  bequests.  But  the  post-testamentary  child,  in  ord^r  to  claim 
a  rateable  portion  of  the  widow's  legacy,  must  take  his  share  of  the 
real  estate  subject  to  dower.  In  Illinois,  a  statute  provides,  that  if  by 
the  widow's  renunciation  of  her  legacy,  other  legacies  are  increased  or 
diminished,  the  court  shall  equalize  them. (3) 

66.  If  the  provision  by  will  is  stated  to  be  for  the  widow's  own  sup- 
port, and  the  support  and  education  of  her  children,  and  she  elects  her 
dower;  the  bequest  fails  in  toto,  and  cannot  be  apportioned  for  the 
benefit  of  the  children. (4) 

67.  If  the  testator  devises  real  and  personal  estate  to  the  widow  in 
lieu  of  dower,  and  the  whole  of  his  property,  subject  to  such  devise,  to 
his  executors  in  trust,  and  the  widow  afterwards  elects  her  dower ;  the 

(1)  Pearson  v.  Pearsar,,  1  Br.  292.  i  10  Gill,  and  J.  65;  Thomas  v.  Wood,  1  Md. 

(2)  Anth.  Shep  451 ;  Burridge  v.  Bradyl,  1    Cli.  296 ;  Hubbard  v.  Hubbard,  6  Met.  50. 
P.  Wras.  127  ;  Blower  v.  Morret,  2  Yes.  sen.        (3)  Mitchel  v.  Blain,    5   Paige,  588  ;  Illin. 
242 ;  Heath  v.  Dendy,  1  Russ.  545 ;  Marga-    Rev.  L.  624. 

ret,  &c.,  1  Bland,  203  ;  Gibson  v.  McCormick,  I      (4)  Hawley  v.  James,  5  Paige,  318. 


(a)  On  the  other  hand,  an  annuity  bequeathed  by  a  testator  to  his  widow,  in  lieu  of 
dower,  and  char^^ed  upon  his  real  and  personal  estate,  is  liable  to  the  claims  of  creditors  of 
the  widow,  and  maybe  reached  by  a  creditor's  bill  against  her.  Degraw  v.  Clason,  U 
Paisre,  136. 

{h)  lu  the  same  State,  it  is  held,  that  a  devise  in  lieu  of  dower  is  to  be  treated  as  dower ; 
find,  if  not  claimed  by  the  widow  in  a  creditor's  suit,  the  land  shall  be  sold  clear,  and  she 
may  claim  her  share  of  the  proceeds.  McCormick  v.  Gibson,  3  Bland,  501.  The  rule  of 
priority  stated  in  the  text  does  not  apply,  unless  the  bounty  to  the  widow  consists  of  real 
estate.     Acey  v.  Simpson,  5  Beav.  35. 


CHAP.  X.] 


DOWER.     HOW  BARRED. 


133 


property  included  in  the  first  devise  docs  not  pass  by  the  second,  but 
is  distributed  to  the  next  of  kin.(l)(«) 

6S.  The  principles  above  stated  belong  to  the  English  law,(Z')  and, 
independently  of  statutory  provisions,  are  generally  adopted  in  this 
countrv.(c)  But,  in  the  States  of  Massachusetts,  Maine,(2)-Indiiijia,  Iowa, 
Vermont,  Pennsylvania,  Maryland, (c/)  (with  slight  modification,)  Vir- 
gin ia,(e)  Wisconsin,  Illinois,  New  Ilampshire,  and  Alabama,(/)  the 
widow  cannot  claim  both  the  provision  made  l)y  will  and  dower  also, 
uidess  such  plainly  appears  to  have  been  the  testator's  intention.  In 
Pennsylvania,  Afaryland,  and  Illinois,  this  intention  must  be  shown  by 
an  express  declaration  in  the  will.  In  Alabama,  where  the  devise  is 
"  not  satisfactory"  to  her,  the  widow  may  waive  it  and  claim  dower.(3) 

69,  In  Missouri  and  Delaware,((7)  the  statutory  provision  applies  only 
to  a  devise  of  7-eal  edate,{4:)  and  in  Missouri  bars  dower  only  in  land  of 
which  the  husband  died  seized. 

70.  In  South  Carolina  it  has  been  held,  that  although  Chancery  might 


(1)  Hawley  v.  James,  5  Paige,  318. 

(2)  Herbert  v.  Wreti,  7  Granuli.  370  ;  Keller 
V.  Micliaol,  2  Teates,  302 ;  Webb  v.  Evans,  1 
Binn.  565  ;  Mass.  Rev.  St.  410.  See  St.  1854, 
73  ;  Purd.  Dig  220-1 ;  Park  &  J.  468 ; 
Mich.  Rev.  St.  264;  Wise.  Rev.  St.  335; 
Anth.  Sbep.  50,  450  ;  Maine  Rev.  Sts.  c  95 ; 
mill.  Rev.  L.  624;  N.  H.  L.   199;    Ala.  L. 


884;  Reid  v.  Campbell,  3  Port.  378;  Green 
V.  Green,  lb.  19 ;  Hastings  v.  Clifford,  32 
Maine,   132. 

(3)  Ala.  L.  258. 

(4)  Misso.  St.  228;  Dela.  St.  1829,  163  ; 
Hamilton  ;;.  O'Neil,  9  Mis.  1 1 ;  Dela.  Rev. 
Sts.  291;  Iowa  Code,  cb.  83,  sec.  1407. 


(a)  Where  the  will  vested  the  whole  title  to  the  testator's  estate  in  trustees,  and  his 
widow  renounced  the  provisions  the  will  made  for  her,  and  dower  was  assigned  to  her  in 
slave-s  wiiich  were  included  in  the  estate  devised  to  the  trustees;  held,  the  assignment 
only  divested  the  title  of  the  tru.-ilees,  to  the  extent  of  the  interest  wliicli  the  law  conferred 
upon  tne  widow  in  the  property  assigned  as  dower;  and  as  she  had,  by  operation  of  law, 
a  life  estate  in  the  slaves,  the  trustees  were  only  divested  of  the  title  to  them  to  that  extent, 
and  the  reversion  remained  in  them  by  virtue  of  the  will,  and  a  creditor  might  sell  the  title 
to  the  reversion  under  an  execution.     Myers  r.  Davies,  10  B.  Mou.  394. 

In  Indiana,  previously  to  the  Revised  Statutes  of  1843,  if  a  devise  to  the  wife  did  not 
state  that  it  was  in  lieu  of  dower,  and  her  claim  of  dower  was  not  inconsistent  with  the 
will,  she  had  a  right  to  take  both.     Kelly  v.  Stinson,  8  Blackf.  387. 

Previously  to  the  Revised  Statutes,  a  testator  devised  certain  goods  to  his  wife,  and  the 
residue  of  iiis  property,  real  and  personal,  to  his  children.  The  devise  to  the  wife  was  not 
said  to  be  in  lieu  of  dower,  nor  would  her  taking  dower  overturn  the  will.  After  the  tes- 
tator's death,  the  widow  released  her  claim  by  dower  (as  it  was  called)  on  the  personal 
estate,  except  the  provisions  made  for  her  in  the  will.  Held,  she  was  entitled  to  dower  in 
the  real  estate.     Ostrander  v.  Spickard,  8  Blackf  227.     See  Smith  v.  Baldwin,  2  Cart.  404. 

(h)  But  see  sec.  14,  n.  a,  for  a  late  statutory  alteration.  The  English  rule  is  still  adopted 
in  Georgia.     Tooke  v.  Hardeman,  7  Geo.  20. 

(c)  Under  section  10  of  tlie  intestate  law  of  Pennsylvania  of  1797,  the  widow's  accept- 
ance of  a  devise  to  her,  does  not  bar  her  of  dower  in  land  which  her  husband  conveyed  in 
liis  lifetime,  thougii  with  general  warranty,  and  in  the  conveyance  of  which  she  did  not 
join.     Borland  v.  Nichols,  12  Penn.  38. 

(d)  A  partial  failure  of  a  devi.se  to  a  widow,  who  abides  by  the  will,  will  not  entitle  her  to 
compensation  out  of  the  residue  of  the  estate,  unless  the  fiilure  is  to  -such  an  extent,  as  to 
make  what  she  receives  under  the  will  less  in  value  than  her  legal  share  of  her  husband's 
estate.     Thomas  v.  Wood,  1  Maryland  Cli.  296. 

(e)  It  has  been  very  recently  held,  that  to  exclude  dower,  there  must  either  be  an 
express  declaration,  or  an  implication  equivalent  to  it.  Higginbothara  v.  Cornwell,  8 
Gratt.  83. 

(  / )  Where  lands  mortgaged  are  devised  with  other  lands,  and  she  does  not  dissent,  she 
has  no  dower  against  the  mortgagee.     Inge  v.  Boardman,  2  Ala.  (N.  S.)  331. 

{g)  No  advancement  made  in  the  husband's  lifetime  shall  affect  dower.  Dela.  Rev. 
Sts.  279. 


134 


DOWER.     HOW  BARRED. 


[CHAP.  X. 


imply  a  provision  by  will  to  be  a  bar  of  dower,  a  court  of  law  could 
not  do  it.(l)(a) 

71.  With  regard  to  the  time  and  mode  of  electing,  it  is  held  in  Eng- 
land, where  the  widow  is  bound  to  elect,  that  if  she  enters  upon  and  en- 
joys the  estate,  an  election  of  such  estate  will  be  presumed.  So,  if  she 
partially  accede  to  a  settlement,  she  will  be  bound  for  the  whole. 
Otherwise,  where  any  act  is  done  under  an  ignorance  of  her  rights  or 
the  testator's  circumstances.(2)  But  if  an  insane  woman  waives  the 
devise  to  her  in  due  form,  does  not  retract  the  waiver  in  any  lucid 
interval,  nor  her  guardian  for  her,  but  claims  dower  and  petitions  for 
an  allowance;  the  waiver  will  bind  her.(3) 

11  a.  Where  real  estate  was  charged  by  a  testator  with  an  annuity,  for 
the  benefit  of  the  widow,  and  it  was  provided,  that  at  her  death  the 
estate  should  be  disposed  of  by  the  executors  in  accordance  with  the 
directions  of  the  testator  ;  held,  the  dissent  of  the  widow  from  the  will 
discharged  the  incumbrance,  and  that  the  estate  thereupon  passed  to 
the  devisees.(4) 

72.  Though  a  devise  be  not  made  expressly  in  lieu  of  dower,  and 
therefore  not  a  bar,  yet  the  widow  by  her  own  acts  may  make  it  such. 
Thus,  if  she  contracts  with  the  heir,  reciting  in  the  agreement  that  she 
receives  certain  things  in  satisfaction  of  the  devise  and  in  lieu  of  dower ; 
she  shall  be  barred  of  the  latter.  Dower,  before  assignment,  being  a 
right  of  action  merely,  may  be  released,  without  formal  conveyance,  by 
acts  and  agreements.(5) 

7u.  A  widow,  to  whom  property  was  bequeathed,  not  expressly  but 
constructively  in  lieu  of  dower,  having  occupied  the  house  devised  to 
herj  and  received  other  property  given  her  by  the  will,  and  disposed  of 
a  part  of  it,  fourteen  years  after  the  husband's  death  claimed  dowser. 
Held,  a  reasonable  time  for  her  election  had  elapsed,  and  she  could  not 
waive  the  devise.(6) 

74.  In  the  absence  of  any  election,  whether  the  widow  shall  take  her 
dower,  or  the  provision  made  for  her  by  will,  seems  to  be  a  point  some- 
what differently  settled  in  different  states.  In  Ohio,  (7)  if  she  fails  to 
elect,  the  law  gives  her  dower.(6)  But  in  Massachusetts,  if  the  provi- 
sion by  will  is  more  beneficial  than  dower,  an  acceptance  of  the  former 


(1)  Pickett  V.  Peay,  2  Con.  S.  C.  746. 

(2)  Milner  v.  Harevvood,  17  Vez.  150; 
Pusey  I).  Desljouvrie,  3  P.  Wms.  321;  Chal- 
mers V.  Storil,  2  Ves.  &  B.  225 ;  Duncan  v. 
Duncan,  2  Yea.  305;  Tooke  v.  Harden,  7 
Geo.  20 ;  U.  S.  v.  Duncan,  4  McL.  99.  Some 
of  these  cases  sustain  the  principle  stated  in 


the  text  rather  by  analogy  than  directly. 

(3)  Brown  v.  Hodgdon,  31  Maine.  65. 

(4)  Armstrong  v.  Park,  9  Humph.  195. 

(5)  Shotwell  V.  Sedam,  3  Ohio,  12. 

(6)  Reed  v.  Dickerman,  12  Pick.  146. 

(7)  Walk.  Intro.  325  ;  Swan,  998-9  ;  Ham- 
ilton «.  O'Neil,  9  Mis.  11. 


(a)  A  devised  one  half  of  his  estate  to  his  daughter,  and  the  other  half  to  his  wife.  The 
latter  married  again,  having  first  made  a  marriage  settlement,  by  which  the  moiety  of  A's 
estate  was  conveyed  to  her  second  husband.  He  died,  and  devised  the  same  half  to  his 
widow,  in  lieu  of  dower;  but  she  elected  to  take  her  dower,  and  so  the  devise  lapsed.  She 
then  applied  to  have  her  dower  in  A's  estate  assigned  to  her.  Held,  as  she  had  accepted 
the  devise,  her  right  of  dower  was  barred.  [Dargan,  Oh.,  dissenting.]  Bailey  v.  Boyce,  4 
Strobh.  Eq.  84.  Where  a  widow  occupied  a  plantation  for  eleven  years  under  the  will  of 
her  Imsband,  she  was  held  to  have  elected  to  take  under  the  will,  and  could  not  claim  dower, 
although  the  will  contained  no  express  provision  that  she  should  elect.  Caston  v.  Gaston,  2 
Rich.  Eq.  1. 

(6)  So,  it  seems,  in  Missouri.     Hamilton  v.  O'Neil,  9  Mis.  11. 


CHAP.  X.] 


DOWER,     now  BARRED, 


135 


will  be  presumed.(l)(a)  And  the  general  rule  undoubtedly  is,  that  the 
widow  will  be  understood  to  aecept  the  devise  or  legacy,  unless  she 
expressly  declare  a  contrary  determination. 

75.  In  most  of  the  States,  a  definite  time  is  fixed,  within  which  she 
shall  make  a  formal  election.  In  Massachusetts,  Maine,  Tennessee,  Ohio 
and  North  Carolina,  within  six  months  from  probate  oT  the  will;  in 
Verrnont,(i)  eight  months;  in  Connecticut,  two  months  (from  the  time 
of  exhibition  of  claims  ;)  in  Maryland,  ninety  days;  in  Missouri  and  111- 
inois,(c)  twelve  months.(2)  In  Michigan,  Indiana  and  Alabama, (3) 
one  year.  In  Pennsylvania,(c?)  New  York  and  AVisconsin,  one  year 
from  the  testator's  death.  In  Pennsylvania,  upon  a  summons  Jiom 
any  party  interested.  In  Virginia  and  Kentucky,  upon  renunciation 
within  one  year  from  the  husband's  death,  the  widow  shall  be  entitled 
to  one-third  of  the  slaves  for  life, 

76.  The  statutes  of  the  several  States  designate  the  form  in  which  an 
election  shall  be  made.  It  is  done  sometimes  by  a  personal  appear- 
anee(e)  of  the  widow  before  the  Court  of  Probate,  but  generally  by 
the  filing  of  a  written  declaration,  which  becomes  matter  of  record. 
In  Virginia  and  Kentucky,(/)  either  openly  in  court  or  by  deed.  In 
Tennessee,  in  the  foY-mer  mode.  In  New  York  and  Michigan,  by  an 
entry  upon  or  suit  for  the  land.  In  Wisconsin,  by  a  suit.  In  Arkan- 
sas, by  a  release  to  the  heirs  within  eighteen  months.(4:) 


(1)  Merrill  v.  Enier)',  10  Pick.  507.  See 
Clay  V.  Hart,  7  Dana,  6 ;  Malone  v.  Majors, 
SHumpli.  577. 

(2)  Mass.  Rev.  Sts.  410  ;  Maine  Tb.  c.  95  ; 
"Walk.  325;  Illia.  Sts.  1842-3,  319;  Arith. 
Shop.  50,  451 ;  1  N.  C.  Rev.  Sts.  613;  Swan, 
998  ;  Conn.  Sts.  189  ;  Verm.  Rev.  Sts.  289- 
90;  Ci'.mmings  v.  Daniel,  9  Dana,  361.  See 
Bell  V.  Wilson,  6  Ired.  Equ.  1 ;  Armstrong  v. 


Baker,  9  Ired.  109  ;  U.  S.  v.  Duncan,  4  McL. 
99  ;  Harvy  v.  Green,  9  Humph,  18'2. 

(3)  Ala.  L.  258  ;  Mich.  Rev.  Sts.  264  :  Hil- 
liard  v.  Binford,  10  Ala.  977;  Ind.  Rev. 
Sts.  Descent,  s.  4 1 . 

(4)  Anth.  Shep.  483,  648 ;  1  N.  T.  Rev. 
Sts.  742  ;  M-alone  v.  Majors,  8  Humph.  577  ; 
Wise.  Rev.  Sts.  335. 


(a)  The  later  docrine  is,  that  such  acceptance  will  be  presumed  in  all  cases  in  the  absence 
of  any  election.  Pratt  v.  Felton,  4  Cush.  174.  If  the  widow  demand  dower,  and  after- 
ward.s,  being  in  posses.sion  of  the  land  devised  to  lier,  lease  it,  and  the  lessee  enter  and 
occupy;  this  is  not  a  sufficient  election  under  the  statute.     lb. 

(h)  III  tliis  State,  if  tlie  widow  was  not  the  first  wife,  if  there  are  no  issue,  if  there  was  an 
ante-nuptial  agreement,  and  she  receives  a  comfortable  support — an  election  will  not  be  al- 
lowed.    Verm  Rev.  Sts.  200. 

Tiie  riglit  of  a  widow  to  waive  the  provision  in  the  will  and  claim  dower,  must  be 
exercised  within  eight  months,  though  the  executor  declines  to  act,  and  adminrstration  is 
granted  with  tlie  will  annexed.     Smith  v.  Smith,  20  Vt.  270. 

(c)  The  act  does  not  apply,  unless  the  provision  is  such,  as  to  raise  a  reasonable  presump- 
tion that  tiie  devise  was  intended  in  lieu  of  dower.     U.  S.  v.  Duncan,  4  McL.  99. 

(rf)  The  statute  of  Penn.sylvania  of  April  11,  1848,  allowing  to  a  widow,  who  elects  not  to 
take  under  her  husband's  will,  the  share  of  his  personal  estate  which  she  would  liave  been 
entitled  to  had  he  died  intestate  does  not  apply  to  a  case  where  the  husband  died  before 
its  passage,  although  the  election  were  not  made  until  afterwards.  Hinnersliits  v.  Bern- 
hard,  1  Harris,  518. 

The  siiare  which  a  widow  would  have  in  the  estate  of  her  husband  if  he  died  intestate, 
is  not  doiver  within  the  statute  of  April  8,  1833,  allowing  a  widow  to  elect  between  her 
dower  and  the  provision  in  iier  husband's  will.     lb. 

(e)  In  Xorth  Carolina,  it  has  been  held,  that  a  widow  must  dissent  from  her  husband's 
will  in  i)erson,  and  cannot  do  so  by  attoriie_y  or  guardian;  and  if  she  bo  lunatic,  no  objec- 
tion can  be  made.     Lewis  v.  Lewis,  7  Ired   72;   Hinton  v.  Hinton,  6  Ired.  274. 

In  Delaware,  it  may  be  done  by  attorney,  if  she  is  unable  to  attend.  Dela.  Rev.  Sts.  29. 
So,  by  a  recent  statute,  in  North  Carolina,  in  case  of  sickness.  And  the  guardian  of  a  lu- 
natic or  non  compos,  may  dissent.   N.  C.  St.  1848-9,  90. 

if)  See  McCallister  v.  Brand,  11  B.  Mon.  370. 


136  DOWER.     HOW  BARRED.  [CHAP.  X. 

77.  But  in  New  York  it  has  been  helcl,(l)  in  Chancery,  that  where 
a  widow,  by  deed,  relinquishes  the  testamentary  provision,  records  the 
deed,  and  notifies  the  executors  and  trustees,  or  the  tenant  of  the  land, 
of  her  election,  who  thereupon  recognize  her  right  of  dower  and  make 
payments  on  account  of  it ;  this  is  equivalent  to  the  statutory  formali- 
ties, and  an  entry  upon,  or  suit  foi',  any  part  of  the  lands  is  suffi- 
cient.(a) 

78.  It  has  been  held  in  Massachusetts,  that  though  provision  is  made 
for  a  widow  in  the  husband's  will,  and  though  she  fails  to  make  her 
election  within  six  months,  she  may  still  claim  her  dower,  if  it  appear 
that  the  estate  is  insolvent,  and  the  provision  in  the  will  wholly  fail. 
By  the  Ee vised  Statutes,  (ch.  60,  sec.  13,)  if  the  widow  is  lawfully 
evicted  of  lands  assigned  as  dower,  or  is  deprived  of  the  provision 
made  for  her  by  will  or  otherwise  in  lieu  of  dower ;  she  may  be  en- 
dowed anew.  Upon  this  ground  the  case  was  decided. (2)  So,  in  Maine, 
if  deprived  of  the  provision  in  the  will,  she  has  dower.  Or  of  any 
substantial  part  of  it.(3) 

79.  The  same  provision  is  held  applicable  in  Massachusetts,  in  case 
of  a  devise  of  all  the  testator's  property  to  the  widow,  on  condition 
that  she  pay  all  his  debts,  legacies,  &c.,  as  well  as  where  there  is  a  be- 
quest of  a  certain  sura  of  money  or  specified  property. (i) 

(1)  Hawley  v.  James,  5  Paige,  318.  |      (3)  Hastings  v.  Clififord,  32  Maine,  32. 

(2)  Thompson  v.  McGaw,  1  Met.  66.  |      (4)  Thompson  v.  McGaw,  1  Met.  66. 

(a)  In  Mississippi,  tliougli  the  probate  of  a  will  made  in  vacation  is  invalid,  yet,  if  acted  upon 
by  the  executor  in  administering  the  estate,  and  by  the  widow  of  the  testator  and  other  par- 
ties in  interest  for  the  period  of  seven  years,  without  objection,  the  widow  will  be  deemed 
to  have  elected  to  take  the  provision  made  for  her  by  the  will,  and  cannot  afterwards 
renounce  such  provision.     Sanders  v.  Sanders,  14  S.  &  M.  81. 

Where  a  widow  has  formally  waived  the  provision  in  the  will,  a  subsequent  contract 
with  the  heirs  and  legatees  to  accept  it,  and  make  no  other  claim  on  the  estate,  can  have 
no  effect  on  the  action  of  the  Probate  Court.     Gowen,  &c.,  32  Maine,  516. 

Wliere  a  widow  dissents  to  her  husband's  will,  she  thereby  rejects  all  the  provisions  ia 
her  favor,  and  is  let  into  the  rights  which  the  law  would  have  conferred  upon  her,  if  her 
husband  had  died  intestate.     Armstrong  v.  Park,  9  Humph.  195. 

Devise  to  the  testator's  widow  of  all  his  estate,  in  trust  to  sell,  and  invest  the  proceeds 
for  her  and  her  children.  The  widow  entered,  and  "  as  widow  and  sole  devisee,  acting 
under  and  by  virtue  of  tlie  last  will"  of  her  husband,  released  certain  land  mortgaged  by  him 
to  the  mortgagee,  in  consideration  of  a  large  sum,  and  of  his  relinquishing  all  claim  upon 
certain  oilier  property  of  the  testator,  with  the  usual  terms  of  a  quit-claim  deed.  Held,  she 
could  not  afterwards  elect  to  claim  her  dower,  though  witliin  the  statutory  period.  Dun- 
das  V.Hitchcock,  12  How.  256. 

Where  a  widow  remains  in  the  mansion-house,  uses  the  property  given  her  by  her  hus- 
band's will,  and  makes  a  will  disposing  of  said  property,  which  will  is  itself  annulled  by  a 
subsequent  event;  she  may  renounce  tiie  testamentary  provisions,  and  her  motives  in  mak- 
ing sucli  renunciation  are  not  to  be  inquired  into.     Mc'Callister  v.  Brand,  11  B.  Mon.  370. 

Where  a  limited  power  ot  disposition  of  certain  property  is  given  to  a  widow,  she  may 
renounce  on  the  ground  of  such  limitation.    lb. 

If  a  widow  make  a  conditional  renunciation  within  one  year,  and  the  contingency  hap- 
pen within  that  year,  the  renunciation  is  valid,  though  it  be  not  recorded  before  the  hap- 
pening of  the  contingency,   lb. 

Whether  the  renunciation  must  be  recorded  within  the  year  or  not,    Qumre.     lb. 

The  renunciation  by  a  widow  does  not  create  a  new  right,  but  merely  confirms  a  pre-ex- 
isting right  which  the  law  creates  in  the  right  to  elect.     lb. 

A  renunciation  amounts  to  a  transfer  by  the  widow  of  her  testamentary  provision  to  the 
heirs  and  devisees,  and  entitles  her  to  what  the  law  gives  from  them.  lb.  Where  the 
widow  fails  to  assent  within  the  time  fixed  by  law,  she  cannot  afterwards  claim  relief  ia 
equity,  on  the  ground  of  mistake  as  to  sufficiency  of  the  estate  to  meet  the  charges  upon  it. 
Otherwise,  where  her  acceptance  of  the  devise  is  obtained  by  fraud.  McDaniel  v.  Douglas, 
6  Humph.  220. 


CHAP.  X.]  DOWER.     HOW  BARRED.  137 

80.  The  widow  having  applied  for  her  dower,  it  appeared  that  a  pre- 
vious apj)lication  had  been  made  and  refused,  before  there  was  sufBeient 
evidence  that  she  would  lose  her  devise,  and  that  she  did  not  appeal 
from  such  decree.  Held,  these  facts  were  no  bar  to  the  present  peti- 
tion.(l) 

81.  The  provision  of  the  Kevised  Statutes,  as  to  a  widow  s  electing 
between  her  dower  and  the  provision  made  for  her  by  will,  does  not 
apply,  where  a  widow  claims  her  third  of  unbequeathed  personal  })rop- 
erty  in  addition  to  the  provision  of  the  will. (2) 

82.  Devise,  that  the  testator's  widow  "shall  have  her  dower  out  of 
my  estate,  in  the  same  manner  she  would  be  entitled  to,  if  this  will  had 
not  been  made."  Held,  as  she  was  hereby  limited  to  dower,  and  ex- 
cluded from  her  share  of  the  personal  property,  the  devise  constituted 
ci  provision  for  her,  within  the  meaning  of  St.  1833,  c.  40;  and,  upon 
waivii)g  it,   she  might  claim   an   allowance  from  the   personal  prop- 

83.  A  testator  devised  to  his  wife,  during  her  widowhood,  all  nis 
property,  subject  to  debts  and  legacies,  and  appointed  her  his  executrix. 
He  also  authorized  her  during  widowhood  to  sell  and  convey  so  much, 
of  his  real  estate  as  she  might  judge  necessary,  &c.,  for  payment  of  his 
debts,  for  support  of  herself  and  her  children,  and  for  their,  education. 
She  accepted  the  trust  and  administered  the  estate.  Within  two  years, 
she  sold  a  part  of  the  real  estate,  under  the  authority  in  the  will,  and 
soon  afterwards  married  again.  Subsequently,  she  sold  the  rest  of  the 
real  estate  for  payment  of  debts,  under  a  license  of  court,  and  with 
her  husband  conveyed  the  same,  not  reserving  her  dower,  and  having 
full  knowledge  of  the  situation  of  the  estate.  Thirteen  j^ears  after  the 
death  of  her  second  husband,  she  first  claimed  dower  in  the  land  sold 
under  the  license.  Held,  she  had  accepted  the  provision  made  for  her 
by  the  will,  and  thus  waived  her  claim  for  dower.(4) 

8-1.  Devise  of  parts  of  the  real  estate  to  the  wife  in  fee,  and  of  all  the 
personal  estate;  the  other  parts  of  the  real  estate  to  be  disposed  of  ac- 
cording to  law.  The  wife  having  accepted  the  devise;  held,  a  bar  of 
dower,(5) 

(1)  Thompson  v.  McGaw,  1  Met.  6C.  |      (4)  Dolay  v.  Vinal,  1  Met.  57.    See  Holm  v. 

(2)  Kempton,  23  Pick.  113.  Low,  4  Met.  190. 

(3)  Craue  r.  Crane,  17  Pick.  422.  !      (5)  Adams  v.  Adams,  5  Met.  277. 


138 


ASSIGNMENT  OF  DOWER. 


[CHAP.  XI. 


CHAPTER  XI. 


ASSIGNMENT   OF    DOWER. 


1.  Necessity  of  assignment. 

2.  Nature  of  estate  before  assignment. 
11.  Tenancy  in  common  with  the  heirs,  in 

Massachusetts,  &c. 
14.  Assigament  not  required  in  equity. 
18.   Q  arantine. 

24.  Assignment  by  the  heir  or  other  tenant. 
30.  Action  at  law  for  dower. 

32.  When  the  only  remedy. 

33.  View. 

34.  Damages. 
36.  Demand. 


40.  Costs. 

41.  Bill  in  equity  for  dower. 

48.  Assignment  by  Probate  Court. 

56.  Forms  of  proceeding. 

58.  How  far  evidence  of  title. 

60.  When    adverse    and    compulsory,    or 

otherwise. 
67.  Application  for  assignment — by  whom. 

70.  Wrong  assignment — how  remedied. 

71.  Assignment — when   it   may   be   de- 

manded. 

72.  Limitation  of  suit  for  dower. 


1.  Although  bj  the  death  of  the  husband  the  right  of  the  widow 
to  dower  becomes  consummate,  yet,  in  general,  she  has  no  title  to  any 
specific  lands,  and  no  right  of  entry  upon  them,  until  her  dower  is 
assigned  or  admeasured  by  the  heir  or  other  tenant  of  the  freehold,  or 
in  a  course  of  legal  proceedings.  She  has  only  a  ■potential  interest, 
or  right  in  action.(l){a) 

2.  Upon  this  principle,  a  mere  judgment  for  dower,  in  a  suit 
brought  by  the  widow,  gives  her  no  right  of  entry,  like  a  judgment 
in  other  real  actions ;  even  though  the  dower  is  to  be  assigned  in 
common,  and  will,  therefore,  be  rendered  no  more  certain  by  the 
assign  men  t.(2) 

3.  In  Pennsylvania,  the  widow  of  a  tenant  in  common  cannot,  before 
assignment,  maintain  a  writ  of  partition.(3)  But  in  New  York  it  is 
intimated,  that  although  the  widow  is  not  properly  made  a  party  to  a 
partition  among  heirs,  devisees,  &c.,  and  cannot  recover  her  dower  by 
process  of  partition,  where  the  husband  was  sole  seized  ;  she  is  a  proper 
party  to  such  partition,  where  he  was  a  tenant  in  common. (4) 

4.  So,  in  general,  it  is  no  defence  to  an  ejectment  against  the 
widow,  brought  by  the  heir  for  lands  descended  to  him,  or  by  a  de- 
visee, that  he  has  failed  to  assign  dower  therein. (5)     That  part  of  the 

(1)  Gilb.  Ten.  26;  9  Mass.  13;  Cox  v.  (  (2)  Hildreth  i\  Thompson,  16  Mass.  191; 
Jagger.  2  Cow.  638;    10  Wend.  528  ;  3  Ohio,    Co.  Lit.  34  b. 

12  ;  13  Pick.  35  ;  Robinson  v.   Miller,  1   B.  |      (3)  Brown  v.  Adams,  2  Whart.  188. 
Monr.   91;    Johnson    v.   Shields,   32   Maine,  I      (4j  Coles  v.  Coles,  15  John.  319. 
424  ;  Pennington  v.  Tell,  6  Eng.  215.  1 


(a)  Where,  before  assignment  of  dower,  the  widow  married  again  ;  held,  the  second  hus- 
band's interest  in  the  laud  did  not  pass  by  an  assignment  of  all  that  he  held  in  right  of  his 
wife.  Brown  v.  Meredith,  2  Keen,  527.  It  has  been  held  in  Vermont,  tliat  the  wife,  pre- 
viously to  her  dower  being  assigned,  has  the  same  right  of  entry  upon  the  land,  whether  as 
against  a  stranger  or  her  co-tenant,  which  the  husband  had  during  his  life.  Gorham  v. 
Daniels,  23  Verm.  600.  In  Delaware,  dower  is  a  right  at  common  law;  but  the  right  to 
have  it  assigned  by  the  Orphans'  Court  is  derived  from  the  act  of  1816.  Lay  ton  v.  Butler, 
4  Harring.  507. 

(6)  But  in  Kentucky,  neither  the  heir  nor  a  purchaser  from  him  can  maintain  an  action 
against  the  widow  for  land  inherited,  till  dower  is  assigned.  Robinson  v.  Miller,  1  B.  Mon. 
93.  In  Alabama,  the  heir  may  recover  the  land  from  one  to  whom  the  widow  conveyed 
before  assignment  of  dower.     Wallace  v.  Hall,  19  Ala.  367.     Where  a  widow  remains  in 


CHAP.  XL] 


ASSIGNMENT  OP  DOWER. 


139 


land,  which  the  widow  is  specially  authorized  to  occupy  without 
assignment,  (as  will  be  seen  hereafter,)  is  of  course  excepted  from  the 
above  remarks.(l) 

5.  A  quiet  possession  of  the  land  and  actual  receipt  of  the  rents  and 
profits,  for  six  years,  are  not  equivalent  to  a  legal  assignment,  so  as  to 
give  the  wife  a  freehold  estate,  but  constitute  either -tr  disseizin  or 
tenancy  at  will.  But  where  a  mother  had  the  right  of  dower,  and  the 
land  descended  to  her  daughter,  of  whom  she  was  guardian,  and 
there  was  no  assignment,  but  the  daughter  rema'ined  in  the  family  of 
the  mother;  held,  all  the  income  that  was  practicable  should  be 
obtained  from  the  estate,  and  the  mother  charged  with  two-thirds,  but 
allowed  to  retain  the  rest  in  lieu  of  dower.(2) 

6.  But  after  dower  has  been  set  off,  the  widow  may  enter  before 
return  of  the  writ.  So,  after  an  assignment  by  commissioners,  made 
with  the  assent  of  the  widow  and  heir,  and  the  report  of  which  is  sub- 
sequently accepted  by  the  Probate  Court;  the  widow,  before  such 
acceptance,  may  enter  and  take  the  crops  sown  by  the  heir  before  the 
assignment.  (3) 

7.  It  has  been  held  in  New  York,(4)(o)  that  before  assignment  the 
widow  may  release,  but  cannot  transfer  her  right;  and  in  Maine, 
Illinois,  /Vrkansas  and  Kentucky, (5)  that  it  cannot  be  taken  in  execu- 
tion. But  in  Alabama,  a  widow  may  assign  her  interest  in  her  hus- 
band's estate,  in  equity. (6)  In  Ohio,(7)  a  conveyance  by  the  widow  of 
her  dower,  before  admeasurement,  is  not  void,  and  will  not  be  set 
aside  on  application  of  a  purchaser  who  has  entered  and  enjoyed.  He 
can  only  claim  to  have  his  title  perfected.  But  no  transfer  can  be 
made,  which  will  justify  a  suit  for  dower  in  the  purchaser's  own  name. 
In  North  Carolina,  although  the  widow  btfore  assignment  is  not  seized 
and  cannot  convey  a  legal  title;  she  may  make  a  contract  concerning 
the  land,  which  equity  will  enforce.(8)  So,  a  receipt  for  money,  received 
as  a  substitute  for  dower,  given  by  a  widow  to  the  purchaser  of  the 
lands  of  her  deceased  husband  from  her  sons,  in  ratification  of  an  ar- 


(1)  Evans  v.  Webb,  1  Yea.  424;  Moore  v. 
Gilliam,  5  Mun.  .346;  Branson  v.Yancy,  1 
B.  &  Dev.  Kqu.  77. 

(2)  Windham  v.  Portland,  4  Mass.  384; 
Malhes  v.  Bennett,  1  Post.  (N.  H.)  204. 

(3)  Co.  Lit.  37  b.  n.  2  ;  Parker  v.  Parker, 
17  Pick.  236. 

(4)  Cox  V.  JapRer,  2  Cow.  638 ;  Siglar  v. 
Van  Riper,   10  Wend.  414;  Ritchie  t'.  Put- 


nam, 13,  524  ;  Green  v.  Putnam,  1  Barb.  500; 
Blain  v.  Harrison,  II  Illin.  384. 

(5)  Mason  v.  Allen,  5  Groenl.  479  ;  Shields 
V.  Batts,  5  J.  J.  Marsh.  15  ;  Summers  v. 
Babb,  13  Illin.  483;  Pennington  v.  Yell,  6 
Eng.  215. 

(6)  Powell  V.  Powell,  10  Ala.  900. 

(7)  Todd  V.  Beatly,  Wright,  461;  Douglass 
V.  M'Coy,  5  Ohio,  527. 

(8)  Potter  V.  Everett,  7  Ired.  Equ.  152. 


possession  of  the  land,  the  remedy  of  the  heirs  is  at  law,  not  in  equity,  unless  there  be  some 
special  leasou  to  the  contrary.  Egbert  v.  Thomas,  1  Cart.  393.  Where  land  was  con- 
veyed, with  a  covenant  that  the  grantor  was  lawful  owner,  had  good  riglit  to  convey,  and 
would  warrant  and  defend,  tiiero  being  a  claim  for  dower  at  the  time,  but  no  assignment; 
and  afterwards  the  grantee  was  compelled  to  pay  an  annuity  in  lieu  thereof:  this  was  no 
breach  of  the  covenant.     Tuite  v.  Miller,  10  Ohio,  382. 

(a)  So  in  Illinois.  Summers  v.  Babb,  13  Illin.  483.  So  it  is  held,  in  Maine,  that  a 
widow's  right  of  dower,  before  it  is  a.ssigned  to  lier,  rests  only  in  action,  and  she  cannot 
release  or  convey  it,  except  to  a  party  in  possession  or  in  privity  of  tiie  estate  from  which 
it  accrued.  Such  right  is  not  embraced  by  the  Maine  Rev.  Stat.  c.  91,  sec.  1,  abrogating 
the  common  law  rule,  by  whicii  disseizees  are  prevented  from  conveying.  Johnson  v. 
Shields,  32  Maine,  424.  The  right  is  a  chose  in  action,  which  may  be  reached  by  a  creditor's 
bill.     Stewart  v.  M'Martin,  5  Barb.  438. 


140 


ASSIGNMENT  OF  DOWER. 


[CHAP.  XI. 


rangeraent  between  her  sons,  and  after  consultation  with  them  and  her 
attorney,  and  due  deliberation,  she  having  received  a  ])ayment  under 
it,  estops  her  from  contesting  its  validity  or  claiming  her  dower.(l) 

8.  In  Indiana,  the  widow  cannot  mortgage  her  dower  before  assign- 
ment.(2)  So,  the  interest  of  the  widow  before  assignment  is  not  a 
proper  subject  of  lease.  Hence,  a  covenant,  in  an  instrument  purport- 
ing to  be  a  lease  of  such  interest,  to  pay  her  a  certain  sum  annually  as 
rent,  in  consideration  of  her  forbearing  to  exercise  her  right  of  dower, 
is  merely  i^ersonal^  and'  does  not  run  with  the  land,  or  bind  an  assignee 
of  the  supposed  lessee.  Neither  can  such  transaction  have  the  effect  of 
a  release^  which  must  operate  presently  and  absolutely.(3) 

9.  The  widow  having  before  assignment  a  mere  right  of  action^  this 
may  be  lost  to  her  without  the  formality  of  a  conveyance,  as,  for 
instance,  by  an  award.(4) 

10.  In  Connecticut,(a)  upon  a  construction  of  the  statute  concerning 
dower,  it  has  been  held,  that  immediately  upon  the  husband's  death, 
the  widow  becomes  a  tenant  in  common  with  the  heirs,  and  may  enter 
without  assignment.  She  is  not  regarded  as  a  tenant  under  the  heirs.(5) 
But  in  New  York,  the  statute,  substituting  ejectment  for  the  former 
remedy  of  the  lurit  of  dower,  has  not  the  effect  to  make  the  widow  a 
tenant  in  common  with  the  heirs.  Her  title  is  still  a  mere  right  of 
action. (6)(6) 

11.  In  Massachusetts,  Vermont,  AYisconsin,  and  Michigan,  the  widow 
may  occupy  the  land  with  the  heirs,  or  receive  one-third  of  the  profits, 
until  t  icy  object.  This  was  also  allowed  in  England  by  the  ancient 
law,  as  ^^ralionabile  estoverium  in  communi."  In  Virginia,  she  may 
receive  one-third  of  the  profits,  till  assignraent.(7) 

12.  In  Maine,(8)  she  shall  have  one-third  of  the  rents  and  profits  till 
assignment,  if  the  husband  died  seized. 

13.  These  provisions  were  probably  intended  to  give  the  widow  a 
remedy  only  against  the  heirs ;  enabling  her  to  recover  the  rents  and 
profits  'rom  the  husband's  death  without  demand,  and  making  the 
amount  of  them  the  measure  of  her  damages.  It  seems,  they  do  not 
authorize  assumpsit  against  any  other  tenant  of  the  freehold  than  the 
heirs,  thereby  allowing  the  title  to  land  to  be  tried  in  this  form  of 
action. (9) 

14.  In  equity,  a  formal  assignment  of  dower  is  deemed  unnecessary. 

15.  Thus,  in  New  York,  the  widow's  right  ma}^  be  reached  by 
creditors,  before  assignment,  by  a  process  in  Chancery. (10) 

16.  An  infant  heir  brings  a  bill  in  equity  against  the  widow  of  the 
deceased,  for  an  account  of  rents  which  the  latter  had  received  as  guar- 


(1)  Simpson,  8  Barr.  199. 

(2)  Strong  v.  Bragg,  7  Blackf.  62. 

(3)  Croade  v.  Ingraham,   13  Pick.  35. 

(4)  Cox  V.  Jagger,  2  Cow.  638  ;  3  Ohio,  12. 

(5)  Stedman  v.  Fortune,  5  Conn.  462. 

(6)  Yates  V.  Paddock,  10  Wend.  528. 

(7)  Mass.  Rev.  St.  410;    Mich.   Rev.  St. 


263:   Verm.  lb.   290;  Wise.   lb.    334;    Vir. 
Code,  474. 

(8)  Co.  Lit.  34,  b;  Foster  v.  Gorton,  5 
Pick.  185;  1  Smitii's  St.  170;  Bolster  ?J. 
Cusliman,  34  Alaine,  428. 

(9)  Gibson  v.  Crebore.  3  Pick.  475. 

(10)  4  Kent.  61. 


(a)  In  this  State,  where  dower  is  claimed  in  an  equity  of  redemption,  with  the  consent  of 
the  widow,  the  court  may  order  a  sale  of  the  whole,  allowing  to  her  her  proportion  of  the 
proceeds.     Sts.  1839,  124. 

(b)  So  in  North  Carolina.     1  Bad.  &  Dev.  Equ.  77. 


CHAP.  XL] 


ASSIGNMENT  OF  DOWER. 


141 


diaii.     The  widow  was  entitled  to  dower,  but  it  hud  never  been  assigned. 
Held,  she  should  be  allowed,  in  accounting,  one-third  of  the  rents.(i) 

17.  And  the  widow  of  a  mortgagor  may  have  a  bill  of  equity  to 
redeem  before  any  assignment  of  dower,  because  such  assignment  does 
not  afi'ect  her  right  of  redemption,  and  because  she  has  no  right  to 
demand  such  assignment  as  against  the  mortgagee,  bcfoxe-she  redeems. 
Nor  is  an  assignment  by  tlic  heirs  necessary,  because  she  could  not 
redeem  a  part  of  the  hmd  without  the  whole.(2) 

18.  To  the  general  rule  at  law,  that  an  assigimient  of  dower  is  neces- 
sary to  perfect  the  title  of  the  widow,  there  is  one  exception.  Magna 
Charta  provided,  that  the  widow  might  remain  in  her  husband's  capital 
mansion-house,  with  the  privilege  ot  reasonable  estovers  or  maintenance, 
for  forty  days  after  his  death,  during  which  time  her  dower  should  be 
assigned.  These  forty  days  are  called  the  widow's  quarantine.  Same 
have  said,  that  by  the  ancient  law  this  time  was  an  entire  year.(3) 

19.  In  most  of  the  States,  a  similar  provision  has  been  expressly 
made  by  statute.  In  Massachusetts,  and  New  York, (a)  the  widow  is 
entitled  to  possession  of  the  mansiondiouse  for  forty  days ;  In  Arkan- 
sas, two  months  ;  in  Maine,  ninety  days;  in  Ohio,  Wisconsin  and  Michi- 
gan, one  year.  In  Indiana,  Virginia,  Kentucky,(Z>)  Ehode  Island,  New- 
Jersey,  Alabama,  Illinois  and  Missouri,  she  may  occupy  till  dower  is 
assigned.  In  Illinois,  Kentucky,  Indiana,  Missouri,  New  Jersey,  Vir- 
ginia and  Alabama,  she  may  also  occupy  ihe  plantation  or  messuage. 
In  Arkansas,(c)  the  mansion  and  farm.  In  Georgia,  the  mansion  and 
tenements.(4) 

20.  In  Virginia  and  Kentucky,  if  deforced  before  assignment,  the. 
widow  shall  have  a  vicontiel  writ,  in  the  nature  of  a  "o?e  quarantma 
hahenda"{5) 

21.  Quarantine  is  a,  personal  right,  not  assignable,  and  said  to  be  for- 
feited, by  implication  of  law,  by  a  second  marriage ;  though  it  has  been 
held,  that  the  statutory  privilege,  of  occupying  the  dwelling-house  till 
assignment,  is  not  lost  by  this  cause,  and  in  Missouri,  that  the  right  is 
assigiiable.  So,  the  heirs  may  recover  the  mansion-house  from  one 
claiming  by  a  transfer  from  the  widow  before  assignment  of  dower.(6) 


(1)  Hamilton  v.  Molmn,  1  P.  "Wms.  118. 

(2)  Gibson  v.  Creliore,  5  Pick.  149. 

(3)  Co.  Lit.  32,  b ;  Seider  v.  Seider,  5 
Whart.  208. 

(4)  Mass.  Rev.  Sts.  411  :  4  Kent,  62; 
Walk.  Litro.  231,  324;  1  N.  C.  Rev.  Sts. 
G17;  Mc.  Rev.  Sts.  393;  Ark.  Rev.  Sts. 
338-9  ;  Mich.  Rev.  Sts.  265  ;  Wi.so.  Rev.  Sts. 
335;  Ind.  Rev.  L.  209  ;  1  Vir.  Rev.  C.  170; 


Ala.  L.  260;  Misso.  Sts.  229  ;  Illin.  Rev  L 
237  ;  N.  J.  Rev.  C.  397  ;  1  Ky.  Rev.  L.  573  ; 
Pilaris  V.  Leacliinan,  20  Ala.  662  ;  Springle 
V.  Shields,  17,  295;  Sheltoii  v.  Carrol,  16,  148; 
Singleton  v.  Singleton,  5  Dana,  89;  Rambo  v. 
Bell,  3  Kelly,  207. 

(5)  1  Vir.  Rev.  C.  170. 

(6 J  Co.  Lit.  32,  b ;  Wallis  v.  Doe,  2  Sra.  & 
M.  220;  Stokes  v.  McAllister,  2  Mis.so.  163. 


(a)  The  statute  relates  to  lands  in  which  she  has  a  right  or  claim  of  dower.  It  does  not 
apply  to  leasehold  property.     Voelckner  v.  Hudson,  1  Sandf.  215. 

(/')  But  where  the  widow  lea  the  mansion  with  her  family,  and  it  was  leased  by  the  ad- 
ministrator to  her  father ;  held,  the  lease  was  to  be  regarded  for  the  benefit  of  the  heirs, 
and  not  as  coiitmumg  the  widow's  pos.se.s.sion.     Burk  v.  Osborn,  9  B.  Mon.  579. 

(c)  In  this  State,  the  husband's  usual  dwelling  is  assigned  for  dower,  unless  serious  injury 
would  bo  thereby  occasioned.  (See  Menifee  v.  Menifee,  3  Eng.  9.)  In  Indiana,  the  term 
messuage  is  held  to  include  a  fev/  acres  adjoining  the  dwelling-house,  and  peculiarly  appro- 
priated thereto.  Guines  v.  Wilson,  4  Blackf  334.  In  Alabama,  the  widow  of  one  residing 
in  a  town  cannot  retawi  the  rents  of  a  plantation,  of  which  her  husband  died  seized,  until  it 
has  been  assigned  to  her  for  dower,  ou  the  ground  of  quarantine.  Smith  v.  Smith,  13 
Ala.  329. 


142 


ASSIGNMENT  OF  DOWER. 


[CHAP.  XL 


But  in  Mississippi,  in  ejectment  by  a  grantee  of  the  husband,  even 
though  the  premises  are  held  by  a  tenant  of  the  widow,  yet  if  she  has 
not  given  a  lease  or  actual  transfer  of  her  privilege  of  possession,  and 
she  be  let  in  to  defend  in  the  action,  she  may  rely  on  her  right  of  pos- 
session under  the  statute.(l) 

22.  It  is  said,  notwithstanding  the  widow's  right  of  occupany,  the 
legal  title  is  still  in  the  heir.  But  it  has  been  held  in  Virgina,  that  the 
heir  cannot  maintain  an  action  for  trespass  to  the  mansion-house  land. (2) 

23.  The  v/idow's  right  to  occupy  the  mansion  usually  ceases  upon 
expiration  of  the  quarantine^  though  dower  have  not  been  assigned  ; 
and  tlie  heir  may  enter  and  bring  a  suit.  Trespass  lies  against  her ; 
for,  she  being  neither  a  joint  tenant  nor  tenant  in  common  with  the 
owner  of  the  inheritance,  the  latter  would  otherwise  be  without 
remedy.  (3)(  a) 

24.  By  the  ancient  common  law,  dower  was  assigned  by  the  heir, 
subject  to  the  judgment  of  the  ^^ pares  curice"' in  case  of  any  dispute. 
But  the  assignment  might  be  made  by  any  tenant  of  the  freehold  ;  and 
this  seems  to  be  the  universal  rule  in  the  United  States. 

25.  If  the  land  is  in  possession  of  a  wrongful  occupant,  as,  for  ia- 
stance,  a  disseizor  or  abator,  the  widow  is  not  bo\ind  in  law  to  wait  for 
hep  dower  until  the  heir  asserts  his  title,  but  may  compel  the  terre-tenant 
to  make  an  assignment.  This  will  be  valid,  unless  he  is  in  possession 
by  fraud  and  covin  of  the  widow,  for  the  purpose  of  obtaining  dower ; 
in  which  case  the  heir  may  avoid  the  assignment,  although  "  equally 
made  by  the  sheriff  afier  judgment."  None,  however,  can  assign  dower, 
except  those  who  have  the  freehold  and  against  wdiom  an  action  would 
]ie.(4) 

26.  Lord  Coke  says,(5)  if  the  husband  have  conveyed  several  lands 
to  different  persons,  and  one  of  them  assign  to  the  widow  in  satisfac- 
tion of  her  whole  dower,  the  others  cannot  avail  themselves  of* such 
assignment.  But  if  a  part  of  the  lands  descend  to  the  heir,  and  he 
assign  in  full  satisfaction  of  her  whole  do^er,  a  grantee  of  another  por- 
tion of  the  laud,  being  sued,  may  vouch  the  heir,  who  may  plead 
this  assignment  in  bar,  there  being  a  privity  between  the  heir  and  the 
grantee. 

27.  In  Virginia,  Kentucky,  Missouri,  New  Jersey  and  Delaware,(6) 
statutes  provide,  that  it  shall  be  no  defence  against  a  suit  for  dower, 
that  another  person  has  assigned  it,  unless  this  assignment  be  shown  to 
be  in  satisfaction  of  dower  from  the  lands  in  question. 

28.  In  some  cases,  where  the  widow  brings  a  suit  against  the  terre- 
tenant,  and  the  latter  vouches  the  heir,  the  tenant  may  "  go  in  peace," 


(1)  Toe  V.  Bernard,  7  S.  A"  M.  319;  Sts.  IT. 
&H.  597,8.47. 

(2)  Branson  v.  Yancy,  1  Bad.  &  Dev.  77; 
Lath^im  v.  Latham.  3  Call.  18L 

(y>)  Jackson  v.  O'Donatrliy,  7  John.  247  ;  Mc 
Cully  V.  Smith,  2  Bai.  103. 


(4)  Co.  Lit.  35  a ;  3  Co.  784  :  4  Dane,  669; 
Norwood  V.  Marrow,  4  Dev.  &  B.  442. 

(5)  Co.  Lit.  35  a ;    (Perk.  s.  402  con.) 

(6)  1  Vir.  Rev.  C.  170  ;  1  Ky.  Rev.  L.  574 ; 
Misso.  St.  231 ;  I  N.  J.  Rev.  C.  398 ;  Dela.  St. 
1829,  165:   Rev.  St.  292. 


(a)  The  action  brought  (in  South  Carolina)  was  trespass  to  try  title.  This  or  some  other 
similar  remedy  must  of  course,  be  requisite.  In  Indiana,  if  tije  widow  enter  upon  any  other 
lands,  than  "the  mansion-house  and  messuage  thereunto  belonging,"  and  apply  the  proceeds 
to  her  own  use,  she  is  a  wrongdoer,  and  liable  to  the  owner  for  the  rents  and  profits. 
4  Blackf.  331.  See  Taylor  v.  McCrackin,  5  Blackf.  261 ;  Stokes  v.  McAllister,  2  Misso.  163. 
In  Arkansas,  the  heir  is  required  to  assign  dower  as  soon  as  possible.     Rev.  Sts.  340. 


CHAP.  XL]  ASSIGNMENT  OF  DOWER.  148 

and  Judgment  sliall  be  given  against  the  heir  alone.  Thus,  if  tlic  heir 
is  vouched  as  having  assets  in  the  same  county,  which  the  demandant 
acknowledges,  judgment  shall  be  against  the  heir;  otherwise  against  the 
tenant,  and  for  him  over  in  value.  If  the  heir  has  assets  in  the  county 
only  in  part,  the  judgment  is  conditional. (1) 

29.  The  right  of  the  heir  to  assign  dower  is  not  inipaifed  by  the 
statutory  provisions  for  such  assignment,  which  exist  in  all  the  States, 
and  will  be  hereafter  mentioned.(2) 

30.  As  has  been  already  intimated,  the  widow  may  maintain  an  ac- 
tion for  her  dower,  where  it  has  not  been  voluntarily  assigned  her, 
against  the  heir,  or  the  tenant  or  immediate  owner  of  the  freehold. 
If  no  dower  has  been  assigned,  the  form  of  action  is  a  writ  of  dower, 
unde  nihil  hahet ;  if  it  has  been  assigned  in  part,  a  writ  of  rigid  ofdoiver, 
which  lies  also  in  the  former  case.(8)  The  writ  unde  niJdl  hahet  is  the 
only  one  provided  in  Massachusetts,  Maine,  Virginia,  (it  seems,)  and 
Kentucky.  In  New  Hampshire,  an  action  of  dower  lies,  in  one  month 
after  demand,  upon  the  party  seized  of  the  freehold,  if  in  the  State ; 
otherwise  upon  the  tenant.  The  proceedings  in  such  suit  are  similar 
to  those  upon  a  petition  for  dower  in  the  Probate  Court.(4) 

31.  The  writ  '•'■  wide  nihil  liuhd^''^  lies  only  against  a  tenant  of  the  free- 
hold.{6){a) 

32.  A  suit  for  dower  in  most  of  the  States  may  always  be  brought 
at  the  election  of  the  widow,  and  it  is  the  only  remedy,  where  the  right 
is  not  conceded,  but  dower  is  claimed  in  lands  of  which  the  husband 
was  7iot  seized  at  his  death  ;  as,  for  instance,  those  which  he  conveyed 
or  mortgaged,  without  her  signature  to  the  deed.  And,  if  he  conveyed 
different  parcels  to  several  persons,  the  widow  shall  be  endowed  pro- 
portionally from  each,  and  they  cannot  be  joined  in  suit.  So  it  has 
been  held  in  Kentucky,  that  the  Probate  Court  cannot  assign  dower  in 
an  equitable  estate. (?>)  But,  if  a  mortgagee  of  the  husband  assent  to  an 
assignment  by  the  Probate  Court,  although  it  has  no  jurisdiction  in 


(1)  Co.  Lit.  39  a,  n.  6. 

(2)  Moore  v.  Waller,  2  Rand.  418. 

(3)  4  Dane,  666,   67  2 ;    Stearns  on  R.  A. 


(4)  Mass.  Rev.  St.  616;   1  Smith's  St.  168; 
1  Ky.  R.  L.  573  ;  N.  II.  Rev.  St.  412. 

(5)  Miller  v.  Beverly,   1   Hen.   &  M.  368; 


300  Hurd  v.  Grant,  3  Wend.  340. 


(a)  In  New  Tork,  ejectment  to  recover  dower  will  lie  against  a  tenant  wlio  has  an  estate  or 
interest  Icfs  than  a  freehold,  and  before  dower  has  been  assigned.  Ellicott  v.  Hosier,  11 
Barb.  574. 

Such  action  must  be  brought  against  the  actual  occupant,  if  any.     lb. 

A  verdict  in  a  real  action,  as  of  dower,  in  favor  of  one  of  several  defendants,  on  his  sepa- 
rate plea,  will  not  avail  another  who  has  suffered  a  default.  Lecompte  v.  Wash,  9  Mis.  551. 
With  regard  to  the  description  of  the  property  in  which  dower  is  claimed,  in  an  action  for 
dower,  if  the  writ  claims  dower  in  the  whole,  while  the  evidence  shows  title  to  it  in  only 
moiety  of  the  premises,  the  demandant  will  recover.  Ilamblin  v.  Bank,  &c.,  1  Appl.  66. 
A  vendor,  by  articles,  before  making  a  deed,  and  while  any  part  of  the  consideration  re- 
main.s  dui>,  is  so  lar  tenant  of  the  freehold,  as  to  make  him  a  proper  party  to  the  action  of 
diOVfQV  unde  nihil  habet.     Jones  v.  Patterson,  12  Penn.  149.     See  Shawe  v.  Boyd,  lb  215. 

It  seems,  non-tenure  is  a  good  plea  in  bar.  Casporus  v.  Jones,  7  Barr,  120.  In  Maine, 
it  must  be  pleaded  in  abatement.  Manning  v.  Laboree,  33  Mhine,  343.  If  the  defendant  in 
a  suit  for  dower,  buy  an  outstanding  title  ader  suit  is  brought,  this  is  no  defence.  lb.  See 
Taylor,  3  llarr.  Dig.  (Suppl.)  716.  A  declaration  for  dower  need  not  show  the  deforcement 
of  the  demandant,  or  the  possession  of  the  defendant.    Foxworth  v.  White,  5  Strobh.  113. 

(h)  So,  tiie  county  courts  cannot  try  a  contested  claim  of  dower  ;  they  can  only  a.=sign  dower 
where  tlie  right  is  conceded.    Garris  v.  Garris,  7  B.  Mon.  461.   Murphy  v.  Murpliy,  ib.  232. 

SO;   in  Mississippi,  the  proper  remedy  for  one  who  resists  a  claim  of  dower  on  the 


144 


ASSIGNMENT  OF  DOWER. 


[CHAP.  XI. 


such  case,  the  assignment  will  be  good.    Without  such  assent,  it  would 
be  absolutely  void. 

33.  If  the  widow  resorts  to  an  action,  the  assignment  is  made  upon 
execution,  by  the  sheriff,  and,  in  general,  upon  a  view.  Hence,  a  de- 
scription by  metes  and  bounds  in  the  writ  is  unnecessary.  In  Illinois  such 
description  is  giv^en  in  the  judgment  upon  petition,  and  in  Kentucky, 
in  the  judgment  upon  a  writ  of  dower.  In  Delaware,  no  view  is  granted. 
And  in  New  York,  it  is  not,  of  course,  allowed,  but  only  upon  affidavit, 
for  cause.(l)(a) 

34.  By  virtue  of  the  ancient  statute  of  Merton,  20  Hen.  3,  in  a  suit 
for  dower,  the  widow  may  have  judgment  for  damages  from  the  hus- 
band's death,  as  well  as  for  the  land  ;  but  only  where  the  husb'and  died 
seized.  As  against  an  alienee,  they  are  recovered  from  the  time  of  demand 
and  refusal.  This  principle  has  been  adopted  by  statute  in  Wisconsin, 
Pennsylvania  and  Kentucky,  (where  the  statute  of  Merton  seems  to  be 
literally  copied,)  and  was  settled  by  an  early  decision,  and  is  now 
adopted  by  statute,  in  New  York.(6)  So  in  New  Jersey.(c)  So  the 
statutes  of  Merton  and  Westminster,  respecting  dower,  have  always 
been  in  force  in  Delaware.(c7)  In  Maine,  New  Hampshire  and  Rhode 
Island,  damages  are  recovered  only  from  demand.  In  Indiana, 
damages  are  recovered  from  a  demand,  unless  there  is  a  minor 
heir.       In    Missouri, (e)  damages  are  recovered  to  the  time  of  trial. 


(1)  Sheafe  v.  O'Neil,  9  Mass.  9 ;  Ind.  Rev. 
L.  210  ;  Rintch  v.  Cunningham,  4  Bibb.  462; 
Eosdick  V.  Gooding,  1  Greenl.  30;  Hawkins  v. 
Page,  4  Men.  137;  Watkins,  9  Jolin.  245; 
Pinkham  v.  Gear,  3  N.  H.  163  ;  Fisk  v.  East- 
man, 5,  243;  Co.  Lit.  34  b. ;  Ayert;.  Spring,  10 


M.nss.  83  ;  111.  Rev.  L.  236,  7  ;  Dela.  St.  1829, 
164;  Rev.  St.  292;  Taylor  v.  Brodrick,  1 
Dana,  347  ;  Vischer  v.  Conant,  4  Cow.  396  ; 
Ostrander  v.  Kneeland,  2  Joiin.  276  ;  Nance 
V.  Hooper,  11  Ala.  552  ;  Wise.  Rev.  St.  334. 


ground  of  paramount  title  in  himself,  is  ejectment :  not  in  the  Probate  Court,  nor  in  equity, 
for  an  injunction  against  the  probate  decree.  So,  the  widow's  remedy,  if  she  is  out  of  pos- 
session, is  ejectment.     Pickens  v.  Wilson,  13  S.  &  M.  691. 

In  the  latter  case,  the  Probate  Court  has  jurisdiction,  as  between  the  widow  and  her  hus- 
band's representatives,  but  its  judgment  cannot  aflect  the  rights  of  the  person  in  possession, 
even  though  he  appears  and  answers  in  the  suit.    Bisland  v.  Hewett,  11  S.  &  M.  164. 

(a)  The  demand  of  an  assignment  of  dower,  claimed  dower  "'in  certain  real  estate,  situate 
in  G  B,  of  which  ray  husband.  A,  was  seized  during  his  marriage  with  me,  or  in  the  land  con- 
veyed by  B  and  wife  to  A,  by  deed  bearing  date  February  22,  1830,  recorded  at  G  B,  book 
65,  p.  211,  and  which  land  was  conveyed  by  A  and  you  in  common,  and  now  all  of  it  held  by 
you.''  The  deed  referred  to  was  a  conve3'ance  by  B,  in  which  B's  wife  merely  released  her 
dower.  Held,  the  description  was  sufficiently  certain.  Atwood  v.  Atwood,  22  Pick.  283. 
In  New  Hampshire,  the  sheriff  is  commanded  to  give  seizin  of  such  part  of,  &e.,  with  the 
appurtenances,  as  will  produce  a  yearly  income  equal  to  such  third  on,  &c.,  being  the  date 
of  the  husband's  alienation  or  death.     Rev.  St.  412,  329. 

(&)  The  husband  is  held  to  have  died  seized,  though  he  mortgaged  the  land  and  the  debt 
had  become  due,  if  there  had  been  no  entry  nor  foreclosure.  Hitchcock  v.  Harrington,  6 
John.  290. 

(c)  But  it  has  been  held  in  this  State,  that  tout  temps  prist  is  a  good  plea  for  the  heir  or 
devisee  of  the  husband,  il  he  died  seized,  and  he  need  not  aver  in  his  plea  that  he  is  heir  or 
devisee.  Hopper  v.  Hopper,  I  N.  J.  543.  But  see  2  lb.  715.  But  it  is  not  a  good  plea 
for  the  husband's  alienee,  who  is  liable  to  damages  from  the  husband's  death.  Woodruff  v. 
Brown,  4  Harri.  246. 

(d)  In  this  State,  interest  may  be  recovered  on  arrears  of  an  annuity  given  iu  lieu  of 
dower,  though  there  be  a  power  of  distress.     Houston  v.  Jamison,  4  Harr.  330. 

(e)  P]xecution  runs  only  against  the  land  subject  to  dower.  If  the  widow  die  before 
judgment,  it  is  rendered  for  damages  only.     Misso.  Sts.  232,  233. 


CHAP.  XL]  ASSIGNMENT  OF  DOWER.  145 

In  Alabama,  from  commencement  of  suit ;  but  not  in  the  Orphan's 
Court.(l) 

35.  In  South  Carolina  and  01uo,(a)  no  damages  are  recovered.  In- 
terest, or  rents  and  profits  are  allowed  in  South  Carolina,(i)  where  the 
husband  died  not  seized.  In  Maine,  the  widow  has  one-ihird  of  the 
rents  till  assignment.  Also,  damages  after  demand.(cy  In  Virginia, 
she  has  an  account  of  profits,  as  against  a  purchaser  from  the  husband, 
only  from  the  date  of  the  subpoena.  In  Maryland,  from  a  demand  and 
refusal,^ and  only  in  a  court  of  chancery.  In  this  State,  an  alienation 
by  the  widow  of  her  right  to  dower,  pending  a  suit  for  rents  and  profits, 
is  a  bar  to  such  suit.  In  case  of  a  partnership,  there  is  no  right  of 
dower  till  the  accounts  are  adjusted  and  the  debts  paid.  The  widow 
cannot,  therefore,  claim  rents  and  profits  from  the  husband's  death.  In 
Wisconsin,  the  widow  recovers  one-third  of  the  profits  from  the  hus- 
band's death,  from  the  heir;  from  others,  only  from  demand.  If  the 
heir  alienate  the  land,  he  is  liable  to  damages  from  the  husband's 
death  to  such  alienation,  not  exceeding  six  years,  and  not  recoverable 
against  both  the  heir  and  purchaser.(2) 

30.  In  England,  ^  widow  cannot  recover  her  dower  without  a 
previous  demand  for  it.  It  is  a  good  plea  by  the  defendant,  that  he 
hath  been  always  ready  and  yet  is  to  render  dower ;  because  the  heir 
holdeth  by  title,  and  doth  no  wrong  till  a  deman<:l  be  made,  which 
manifestly  distinguishes  this  case  from  other  actions  for  recovery  of 
land  and  damages.  And  it  is  said  the  widow  shall  have  no  damaiics 
where,  before  assignment,  she  has  had  the  use  of  the  land,  as  where 
she  has  an  estate  for  years.(3) 

37.  In  general,  a  previous  demand  is  necessary  to  maintain  an  action 
for  dower  in  the  United  States.  Otherwise  in  New  York ;  and  even 
danuges  maybe  recovered  without  demand.  But  the  plea  of  '■^ tout 
tempis  prist^''^  is  a  good  defence  against  the  claim  for  damages.     By  the 


(1)  4  Kent,  64;  Co.  Lit.  32  b;  N.  H.  Rev. 
St.  412;  Kmbreo  v.  Ellis,  21  Jolin.  119; 
Purd.  Dig.  221;  Sharp  v.  Pettit,  3  Tea.  38; 
Marshall  v.  Anderson,  1  B.  Men.  193  ;  Lay- 
ton  V.  Butler,  4  Harring.  507 ;  McClanahan 
V.  Porter,  10  Mis.  746;  Rankin  v.  Oliphant, 
9,  239  ;  Beaners  v.  Smith,  11  Ala.  20  ;  Smith 
V.  Smith,  13,  329  ;  1  N.  J.  Sts.  397  ;  1  N.  Y. 
Rev.  St.  742;  I  Smith,  (Maine,)  169;  N.  H. 
L.  88;  R.  L  L.  189;  Ind  Rev.  St.  240  ;  1 
Ky.  Rev.  L.  574;  5  Mon.  283.  See  Davis  v. 
Logan,  9  Dana,  186;  McElroy  f.  Wathen,  3 
B.  Mon.  137  ;  Gantoa  v.  Bates,  4,  367  ;  Sea- 


ton  V.  Jemison,   7   "Watts,   533  ;    Wise.  Rev. 
Sts.  335  ;  Francis  v.  Cnirrard,  18  Ala.  794. 

(2)  Ileyward  v.  Cuthbcrt,  1  McC.  386; 
Wright  V.  Jennings,  1  Bai.  277  ;  McCreary 
V.  Cloud,  2,  343  ;  Rickard  v.  Talbird,  Rice, 
158;  Bank,  &c.  v.  Dunsetb,  10  Ohio,  18; 
Me.  Rev.  St.  392 ;  Tod  v.  Baylor,  4  Leigh, 
498  ;  Steiger  v.  Hillen,  5  G.  &  J.  121 ;  Tell- 
man  v.  Bowen,  8,  333;  Kiddall  v.  Trimble, 
1  Md  Ch.  143;  Goodburn  v.  Stevens,  lb. 
420  ;   Wise.  Rev.  Sts.  335. 

(3)  Co.  Lit.  33  a,  and  n.  3. 


(a)  The  commissioners  for  assigning  dower  appraise  the  yearly  value  of  the  land,  from  the 
date  ol  the  petition  to  that  of  the  assignment,  and  one-tliird  of  the  amount,  deducting  any 
improvements  by  a  purchaser  from  the  husband,  is  decreed  to  the  widow.  Ohio  St. 
1842,  6. 

(&)  So,  although  the  widow  has  been  put  to  her  election  whether  to  take  dower,  or 
under  her  husband's  will.  Woodward  v.  Woodward,  2  Rich.  Eq.  23.  Where  commissioners 
asse.ss  a  sum  of  money  in  lieu  of  the  widow's  dower,  in  lands  of  which  her  husband  died 
seized,  she  is  entitled,  in  equity,  in  addition  to  the  sura  assessed,  to  one-third  of  the  mesne 
profits  from  the  death  of  her  husband  until  the  return  of  the  commissioners  is  confirmed, 
and  to  interest  on  the  sum  assessed,  from  the  time  the  return  is  confirmed  until  the  money 
is  paid.     lb. 

(c)  Where  the  demandaot  in  a  suit  for  dower  dies,  her  executor,  <fec.,  may  recover  dam- 
ages.    Me.  St.  1852,  255. 

Vol.  I.  10 


146 


ASSIGNMENT  OF  DOWER. 


rCHAP.  XL 


statute  of  New  Jersey,  the  heir  of  a  husband,  who  dies  seized,  is  obliged 
to  assign  dower  without  demand,  and  is  liable  to  damages  for  neglect 
to  assign. (1) 

33.  A  demand  for  dower  may  be  hy  parol,  and  need  not  be  in  pre- 
sence of  witnesses.  An  agent  may  make  it  without  written  power  of 
attorney,  and  elsewhere  than  on  the  land.  It  should  describe  the  land 
with  reasonable  certainty, (a)  and  be  made  upon  him  who  is  tenant  of 
the  freehold  at  the  time  of  demand,  though  he  were  not  such  tenant  at 
the  death  of  the  husband. (2) 

89.  In  Indiana,(^)  if  the  heirs,  &c.,  reside  out  of  the  county  where 
the  major  part  of  the  lands  lie,  or  any  of  them  are  minors  without  a 
guardian,  a  demand  is  unnecessary.  A  similar  provision  is  made  in 
Illinois.(8) 

40.  In  New  York,  if  the  tenant  of  the  freehold  assign  during  quaran- 
tine, no  costs  shall  be  recovered  in  an  ejectment  for  dower.  But  if, 
after  quarantine,  he  offer  to  assign,  though  before  suit  brought,  costs 
are  allowed  (4)  In  South  Carolina,  the  heir  or  other  owner  must  pay 
the  cost  of  assignment,  whether  by  his  own  act  or  process  of  law,  even 
though  he  return  to  the  summons  that  he  was  r.eady  and  offered  to 
assign  before  it  was  issued. (5) 

41.  Dower  is  an  important  subject  of  e5'W%  jurisdiction;  which  has 
become  so  common  a  resort  for  the  enforcement  of  this  claim,  (in  Eng- 
land,) that  a  distinguished  judge  remarked,  that  writs  of  dower  had 
almost  gone  out  of  practice.  This  jurisdiction  was  never  questioned 
for  all  purposes  of  mere  discovery.  The  difficulty  of  obtaining  access  to 
title  deeds  in  the  hands  of  the  heir;  of  ascertaining  the  precise  lands 
from  Avhich  dower  is  to  be  assigned,  and  their  relative  value;  and  of 
procuring  a  fair  assignment  of  one-third  of  the  estate ;  presents  a  strong 
case  for  the  interposition  of  Chancery,  to  remove  all  impediments  in 
the  way  of  thp  legal  tide.  And  although  the  further  power  of  relief 
was  formerly  doubted,  it  is  now  fully  settled  that  equity  has  in  all 
cases  concuri'ent  jurisdiction,  through  commissioners  or  otherwise, 
actually  to  assign  dower,  unless  the  title  is  disputed,  and  then  it  sends 
the  ease  to  an  issue  at  law.  If  the  estate  is  merely  equitable.  Chancery 
is  said  to  liave  exclusive  '^xxvisdactAon.    In  Maryland,  although  thelimita- 


(1)  Hopper  V.  Hopper.  2  N.  J.  715. 

(2)  Jackson  v.  Cliurchill,  7  Cow.  287 ; 
Hitchcock  V.  Harrington,  6  Jolin.  290; 
Baker  v.  Baker,  4  Greenl.  67  ;  Bear  v.  Sny- 
der, 11  Wend.  592;  Leavitt  v.  Lamprey,  13 
Pick.    382;    Page  v.   Page,    6    Gush.    196; 


Haynes  i;.    Powers,    2    Post.    (N.   H.)   590; 
Watson  V.  Watson,!  Eng.  L.  &  Equ.  371. 

(3)  Ind.  liev.  L.    209-10 ;    Hlin.   Rev.  L. 
238. 

(4)  Yates  v.  Paddock,  10  Wend.  528. 

(5)  Harsliaw  v.  Davis,  1  Strobh.  74. 


(a)  A  demand,  made  by  an  attorney  in  fact,  in  virtue  of  a  power  authorizing  liira,  for  tbe 
constituent,  iind  in  lier  name  and  behalf,  to  demand  lier  just  dower  to  be  assigned  to  her, 
"  in  any  and  all  of  tlie  before-mentioned  premises,  or  any  oilier,"  no  premises  whatever 
being  mentioned,  is  insufficient ;  although  such  authority  is  ratilii'd  by  a  second  power  of 
attorney,  in  which  she  recites  the  former,  and  autiiorizea  tlie  attorney  to  commute  for  and 
settle  all  her  claims  of  dower  in  the  premises,  no  premises  being  described.  Sloan  v.  Whit- 
man, 5  Gush.  532. 

In  Massachusetts,  the  demand  must  be  a  personal  one;  and  if  there  are  more  tenants  than 
one  of  the  freehold,  it  must  be  made  on  each  of  them.  Burbank  v.  Day,  12  Met.  557.  A 
•written  demand  upon  all,  served  by  a  sheriff,  by  a  copy  delivered  to  one,  and  copies  left  at 
the  dwellings  of  the  others,  is  insufficient,     lb. 

{h)  In  this  titato,  the  petition  for  dower  must  allege  a  demand.  Boyers  v.  Newbanka,  2 
Cart.  388. 


CHAP.  XL] 


ASSIGNMENT  OF  DOWER. 


147 


tion  above  named  was  formerly  recognized,  it  seems  to  be  now  dis- 
claimed, and  the  Court  of  Chancery  asserts  its  full  concurrent  jurisdic- 
tion with  other  courts,  to  settle  even  a  disputed  legal  title.(l)(a) 

42.  It  was  remarked  l^  Lord  Alvanley,  then  ^[aster  of  the  Rolls,  in 
a  case  which  has  been  called  "the  pole-star  of  the  doctrine,"  that  a 
dowrcss  stands  on  the  same  footing  as  an  infant,  inllic  View  of  equity, 
and  that  it  would  be  unconscientious  to  turn  her  over  to  law  for  the 
recovery  of  a  provision  necessary  to  her  immediate  subsistence,  when 
she  ha.sbeen  compelled  to  resort  to  equity  for  discovery. (2) 

43.  In  some  respects,  Chancery  gives  a  relief  more  perfect  tlian  can 
be  obtained  at  law.  Thus,  although  at  law  the  widow  recovers  dam- 
ages from  the  time  of  demand,  yet,  if  either  she  or  the  tenant  dies  before 
they  are  assessed,  they  are  thereby  lost.(6)  While  equity,  although 
awarding  no  damages  as  such,{c)  in  this  case  as  in  all  others,  Avill  order 
an  account  of  rents  and  profits  from  the  husband's  death,  if  he  died 
seized.  In  England,  by  a  recent  act,  and  also  in  New  Yoi'k,  such  ac- 
count is  limited  to  twoyears  previous  to  commencement  of  suit.  The 
rents  and  profits  go  to  the  executor,  not  to  the  heir,  of  the  widow.(3] 

44.  But  though,  in  favor  of  the  widow,  the  interposition  of  Chancery 
may  sometimes  be  peculiarly  requisite  in  cases  of  dower,  yet,  in  general, 
equity  follows  the  law,  the  parties  are  to  stand  on  their  legal  rights, 
and  nothing  will  be  effectual  as  a  bar  of  dower  in  equity  which  would 
not  be  such  at  law,  unless  there  be  fraud  and  imposition,  or  some  coun- 
ter equity  against  the  widow's  claim.  Thus,  equity  will  not  cure  any 
defect  in  the  form  of  a  release  of  dower.  So  courts  of  equity  will  not 
permit  an  equity  to  be  interposed  to  defeat  the  dower.  But  where  the 
■widow  applies  for  equitable  relief,  she  cannot  resist  an  equitable  de- 
fence, as  against  a  purchaser  for  a  valuable  consideration,  who  is  igno- 


(1)  Wild  V.  Wells,  Tothill,  145;  Good- 
enough  V.  Goodcnough,  Dickcna,  795  ;  Swain 
V.  Ferine,  5  John.  Clia.  482 ;  Herbert  v. 
Wren,  1  Cranch,  370 ;  1  Story  on  Equity, 
576-7-8;  Powell  v.  Monson,  &c.,  3  Mas. 
347;  Wells  v.  Beall,  2  Gill.  &  J.  468; 
Steiger  v.  Hillen,  5  Gill  &  J.  127  ;  Grayson  v. 
Moncure,  1  Leigli,  449 ;  Kendall  v.  Honey, 
5  Monr.  284 ;  Stevens  v.  Smith,  4  J.  J.  Mar. 
64 ;  Badger  v.  Bruce,  4  Paige,  98  ;  London 
V.  London,  1  Humphrey,  1 ;  Le  Fort  v.  Dela- 


field,  3  Edw.  32 ;  Scott  v.  Crawford.  11  Gil). 
&  J.  379;  Marshall  v.  Anderson,  1  B.  Monr. 
198;  M'Mahan  V.  Kimball,  3  Blackf.  12; 
Blain  V.  Harrison,  11  Hiin.  384;  Kiddell  v. 
Trimble,  I  Md.  Clia,  143. 

(2)  1  Story,  579 ;  Curtis  v.  Curtis,  2  Bro. 
Cha.  620,  630,  634. 

(3)  1  Story,  577;  Johnson  v.  Thomas,  2 
Paige,  377;  4  Kent,  70  and  n.  2;  Coons  v. 
Nail.  4  Lit.  (Ky.)  264. 


(a)  But,  where  the  husband's  seizin  is  disputed,  it  is  usual  to  send  the  case  to  law. 
Tellman  v.  Bowen,  8  Gill.  &  J.  333.  On  the  other  hand,  equity  may  be  called  upon  to 
interfere  by  injunction  with  a  suit  at  law  for  dower.  But  this  it  will  not  do,  except  in  case 
of  some  forfeiture  or  bar  of  dower,  not  proveable  at  law,  but  only  in  equity.  There  must 
have  been  something  received  by  tiie  widow,  wliich  was  botli  paid  and  accepted  as  an 
equivalent  for  dower.  O'Brien  v.  Elliot,  3  Shepl.  125.  Where  a  bill  for  dower  is  filed 
against  a  purchaser  from  the  husband,  who  files  a  cross  bill  for  indemnity,  (on  his  cove- 
nants,) tiie  former  will  be  continued,  to  abide  the  result  of  the  latter.  Lawson  v.  Morton, 
6  Dana,  471. 

(L)  It  has  been  seen  that  this  defect  in  the  law  has  been  remedied  in  some  of  the 
States. 

(c)  Otherwise  in  Tennessee.  London  v.  London,  1  Humph.  1.  It  is  held  in  Maryland, 
that  equity  alone  can  give  damages  against  an  alienee  of  the  husband,  Kid  iail  v.  Trimble,  1 
Md.  Ch.  143.  A  suit  in  equity  does  not  lie  for  rents  and  profit.s,  after  an  unsuccessful  suit 
at  law.  lb.  In  Alabama,  damages  are  allowed  on  the  ground  of  title,  and  interest  upon 
the  arrears.     Beavers  v.  iSmitb,  11  Ala.  20. 


148 


ASSIGNMENT  OF  DOWER. 


[CHAP.  XL- 


rant  of  her  claim. (1)  So  tliere  can  be  no  dower  in  equity,  unless  the  hus- 
band was  seized  during  coverture.(2) 

45.  Whether  Chancery  will  sustain  a  bill  for  discovery  and  relief, 
in  favor  of  a  widow,  against  a  purchaser  of  the  land  for  valuable  con- 
sideration and  witliout  notice,  isa^doubtful  point  (8) 

46.  Generally  speaking,  in  America,  fewer  cases  occur  in  regard  to 
dower,  in  which  tl>e  aid  of  a  court  of  equity  is  wanted,  than  in  Eng- 
land, from  the  greater  simplicity  of  our  titles,  the  rareness  of  family 
settlements,  and  the  general  distribution  of  property  among  all  the  de- 
scendants in  equal  or  nearly  equal  proportions.  Such  instances,  how- 
ever, sometimes  occur.  As  where  the  husband  was  a  tenant  in  com- 
mon, and  a  partition,  account  or  discovery  is  rendered  necessar3\  So 
where  the  lands  are  held  by  various  purchasers;  or  the  relative  values 
are  not  easily  ascertainable,  as  in  the  case  when  they  have  become  the 
site  of  large  manufacturing  establishments;  or  where  the  right  is  affected 
with  numerous  or  conflicting  equities.(4) 

47.  In  New  Jersey,  although  possessing  a  court  with  full  Chancery 
powers,  dower  was  formerly  considered  as  exclusively  within  the  cog- 
nizance of  the  common  law  courts,  except  for  discovery.  By  a  late 
statute,  however,  Chancery  jurisdiction  upon  this  subject  is  distinctl}'' 
recognized.(5)(o) 

48.  In  the  United  States,  suits  for  dower  both  at  law  and  in  Chan- 
cery are  comparatively  of  rare  occurrence.  The  statute  law  of  all  the 
States  provides  a  summary  mode  for  obtaining  an  assignment  of  dower, 
by  application  or  petition  to  the  Prerogative,  Probate  or  Orphan's 
Court,  having  jurisdiction  of  the  estates  of  persons  deceased. (6)  The 
assignment  is  made  by  commissioners  or  a  special  jury,  after  notice 
to  all  parties  interested.(c)  It  has  already  been  stated  that  this  course 
can  in  general   be  resorted  to,  only  where  the  husband  died  seized  of 


(1)  Powell  V.  Monson,  &c.,  3  Mas.  360  ; 
Maj-burry  v.  Bren,  15  Pet.  21 ;  Blain  v.  Har- 
rison, 11  lUin.  384.  See  Egbert  v.  Thoaias,  1 
Can.  393. 

(2)  Dennis  V.  Dennis,  7  Blackf.  572. 


(3)  1  Story,  585. 

(4)  lb.  587. 

(5)  Harri.TOD  v.  Eldridge,  2  Halst.  401-2; 
N.  J.  St.  1845,  92. 


(a)  The  courts  of  chancer}',  in  Arkansas,  have  jurisdiction  in  matters  of  dower,  especially 
where  the  lands  lie  in  ditfereiit  counties;  notwithstanding  ihe  jurisdiction  given  to  the  pro- 
bale  courts.     Menifee  v  Menifee,  3  Eng.  9. 

Where  the  husband  was  joint  tenant,  held,  the  widow,  in  a  bill  in  equity  for  dower, 
against  the  adminisirMtor,  might  unite  the  other  tenant,  or,  in  case  of  his  death,  his  heirs,  as 
delendants,  so  that  the  lands  might  be  divided,  and  her  dower  assigned.     lb. 

When,  on  a  bill  in  equity  for  dower  and  the  settlement  of  accounts  between  a  widow  and 
the  administrator,  it  appears  that  siie  has  retained  a  gold  watch  belonging  to  her  husband ; 
the  court  may  allow  her  to  keep  the  watch,  and  charge  her  with  its  value.     lb. 

(b)  In  Massachusetts,  this  mode  of  assignment,  though  immemorially  practiced,  is  said  to 
have  been  autliorized  merely  by  an  infertnce  from  certain  statutes.  Sheafe  v.  O'Neil,  9  Mass. 
10-1.  A  judge  of  probate  has  no  authority,  under  Massachusetts  Revised  Statutes,  c.  60, 
s.  3.  to  a.ssign  dower  in  mortgaged  lands.  Kaynham  v.  Wilmarth,  13  Met.  414.  By  a  late 
statute,  (1850,  343,)  where  a  testator  provides  by  his  will,  that  his  widow  shall  have  the 
use  and  improvement  of  an  undivided  part  of  his  real  estate  for  her  life  or  widowhood  ;  the 
Probate  Court  may  set  ofT  her  interest,  as  in  case  of  dower. 

(c)  Notice  to  the  administrator,  of  proceedings  in  the  Probate  Court  (under  Rev.  Sts.  of 
Mi.liigan,  1828,  c.  2,  p.  262j  for  assignment  ot  the  widow's  dower,  is  not  necessary.  Camp- 
bell, 2  Doug.  141. 


CHAP.  XL] 


ASSIGNMENT  OF  DOWER. 


149 


the  land  from  which  dower  is  claimed,  and  the  widow's  right  to  dower 
is  not  disputed  by  the  heirs  or  devisccs.(l) 

4'.-».  In  Ohio,  it  is  said,  probably  no  action  for  dower  will  lie,  but  the 
only  two  modes  of  obtaining  it,  are  a  voluntary  assignment  by  tbe  heir, 
&c.,  and  a  petition;  and  the  latter  is  the  only  method,  ivhere  the  land 
is  incunibci-cd.     In  Wisconsin,  the  writ  of  dower  is'nbolished.(2) 

50.  In  Vermont  and  Michigan, (3)(rt)  it  is  provided  that  the  widow 
may  recover  her  dower  as  the  law  directs.  Under  this  clause,  an  action 
for  dower  may  undoubtedly  be  maintained,  although  in  Vermont  sub- 
sequent provision  is  made  for  an  assignment  by  the  Probate  Court. 

51.  In  New  York,(4)  the  action  of  dower  is  abolished;  but  the 
remedy  of  ejectment  is  provided  for  the  recovery  of  dower  before  as- 
signment. In  this  suit,  commissioners  are  appointed  to  make  an 
admeasurement,  and  possession  is  given  accordingly. (/j)     So  in  Illinois, 

52.  In  Dclaware,(5)  provision  is  made  for  an  assignment  by  the 
Orphan's  Court ;  but  the  action  of  dower  is  also  recognized  and 
regulated. 

ho.  In  Pennsylvania, (6)  the  question  has  arisen,  how  far  the  common 
law  remedy  for  recovery  of  dower  had  been  superseded  by  the  stat- 
utory provisions  for  an  assignment  in  the  Probate  Court.  The  action 
was  a  writ  of  dower  unde  nihil  habet.  The  husband  had  been  a  tenant 
in  common  with  the  defendant.  It  was  contended  by  the  counsel  for 
the  latter,  that  the  common  law  right  of  dower  was  abrogated  by  the 
statute  law,  which  had  created  an  estate  for  the  widow  in  lieu  of 
dower;  and  that  no  remedy  therefore  would  lie  for  its  recovery,  ex- 
ce[)t  that  expressly  provided.  On  the  other  hand  it  was  contended  for 
the  plaintilT,  that  such  a  construction  would  impair  the  right  of  a  trial  by 
jury.  The  court  held,  that  although  the  right  of  the  widow  was  given 
by  statute,  yet  this  was  merely  declaratory  or  in  affirmance  of  the 
common  law  ;  that  in  this  case  of  tenancy  in  common,  the  Probate 
Court  would  have  no  jurisdiction;  neither  could  the  widow  maintain 
a  writ  of  partition  ;  and  therefore  the  action  brought  was  her  only 
remedy.     Judgment  for  the  plaintiff(c) 

54.  A  testator  ordered  that  the  residue  of  his  estate,  except  a  house 
devised  to  his  wife  in  addition  to  her  dower,  should  descend  as  if  no 
will  had  been  made.     Held,  the  widow  could  not  maintain  an  action 


(1)  Mass.  Rev.  St.  409  ;  4  Kent,  72.  See 
Stiver  V.  Cawthom,  4  Dev.  &  B.  501;  Me. 
Rev.  St  451.  In  Mississippi,  the  Probate 
Court  is  said  to  have  full  jurisdiction  of  the 
claim  ofdower  in  all  cases.  Carulhers  v.  Wil- 
son, 1  Sm.  &  M.  527. 

(2)  Walk.  Intro.  326;  Wise.  Rev.  Sts.  586. 

(3)  1  Vt.  L.  132,  158  ;  Mich.  L.  30. 


(4)  2  N.  Y.  Rev.  St.  303,  343 ;  Illin.  St. 
1838-9,  227-8. 

(5)  Dcla,  St.  1829,  164,  168;  Rev.  Sts. 
292. 

(6)  Brown  v.  Adams,  2  Whart.  188.  But 
see  Bratton  v.  Mitchell,  7  Watts,  113;  also 
Riltenhouse  v.  Levering,  6  Watts  <fe  S.  190. 


(a)  Bj  the  Revised  Statutes,  if  not  assigned  in  30  daj-s  from  demand,  she  may  bring  a 
writ  of  dower.     Rev.  Sts.  263. 

{li)  The  action  is  brought  against  the  actual  occupant;  or,  if  none,  against  the  party 
owning  or  interested  in  the  land.  Sherwood  v.  Yandenburgh,  2  Tlill,  303.  A  proceeding 
lor  dower,  under  the  Code  of  New  York  of  1848,  may  be  regarded  a.s  a  suiislituie  for  the 
former  remedy  by  petition  or  bill;  and  will  lie,  though'  the  defendant,  being  seized,  is  not  in 
actual  possession,  and  six  months  have  not  elapsed  since  the  death  of  the  husband. 
Townsend  v-  Townsend,  2  Sandf  711. 

(c)  In  Maine,  before  assignment  of  dower  to  the  widow  of  a  tenant  in  common,  partitioa 
must  be  made.     Me.  Rev.  St.  451. 


150  ASSIGNMENT  OF  DOWElf  [CHAP.  XI 

of  dower.  If  the  land  descended,  the  will  being  void,  exclusive  juris- 
diction vested  in  the  Orphan's  Court;  if  it  passed  under  the  will,  the 
widow  was  a  purchaser,  and  her  remedy  was  bj  ejectment.(l) 

55.  It  may  perhaps  be  safely  said,  that  the  remark,  made  in  New 
York  and  South  Carolina,  is  equally  applicable  in  most  of  the  other 
States;  namely,  that  "the  acts  (concerning  assignment  of  dower)  are 
made,  not  to  vary  the  right  to  dower,"  (or  supersede  the  old  remedy,) 
"  but  to  institute  a  more  easy  and  certain  mode  of  obtaining  it,"(2)(a) 

56.  This  method  of  obtaining  an  assignment  of  dower  partakes  of 
the  nature  of  a  suit  in  different  degrees  in  the  several  States.  The 
proceeding  is  usually  termed  a  petition^  but  in  Vermont(3)  a  complaint. 
It  is  in  fact  everywhere,  and  in  North  Carolina  and  Alabama(4)  ex- 
pressly declared  to  be,  in  its  nature,  summary. 

57.  In  most  of  the  States,  the  return  of  the  commissioners  appointed 
by  the  court  to  make  the  assignment,  is  not  made  the  foundation  of  a 
judgment,  upon  which  execution  issues;  but  only  gives  a  right  of 
entry^  or  vests  a  title  in  the  widow,  which  authorizes  her  to  enter,  and 
which  she  may  maintain,  if  necessary,  by  a  subsequent  suit  for  pos- 
session. Neither  are  damages  ordinarily  allowed  in  this  course  of 
proceeding.  Its  chief  object  is,  to  prevent  difficulty  and  contention 
between  the  widow  and  the  heir  or  tenant,  as  to  the  just  extent  or  as- 
certainment of  her  dower.(5) 

58.  In  New  York,  the  proceedings  before  the  surrogate,  for  ad- 
measurement of  dower,  are  no  evidence  of  tiile^  in  ejectment,  but 
merely  of  the  location  of  the  land  ;  but  as  to  this  they  are  conclusive. 
But  commiissioners  for  assigning  dower  have  the  same  powers  as  the 
sheriff  under  an  execution  ;  and  are  not  confined  to  a  mere  assignment 
by  metes  and  bounds,  but  may  exercise  a  discretion,  and  assign  dower, 
for  example,  in  mines^  and  such  assignment  may  be  enforced  by  the 
surrogate.(6) 

59.  A  record  of  the  assignment  of  dower  in  the  Court  of  Probate, 
is  presumptive  evidence  that  the  assignment  was  made  upon  the  peti- 
tion, and  with  knowledge,  of  the  widow,  such  being  the  usual  course, 
and  the  proceeding  being  for  her  benefit.(7) 

60.  But  in  some  paj-ts  of  this  country,  ^particularly  the  new  Western 
States,  a  mere  j^etition  for  dower,  which  may  be  called  amicable  at  its  in- 

(1)  Thomas  v.  Simpson,  ?■  Barr.  60.  j      (5)  Williams  v.  Morgan,  1  Lit.  1G1 ;  Martha 

(2)  Yates   v.   Paddock,    10    Wend.    528 ;    Watkins,  9  John.  245. 

Scott  V.  Scott,  1  Bay,  507.  (6)  Jackson  v.  Dewitt,  6  Cow.  316;  Miller 

(3)  1  Ver.  L.  158.  v.  Hixon,  17  John.  123  ;  Coates  v.  Cheever,  1 

(4)  Alab.  L.  259 ;   1  N.  C.  Rev.  St.  614  ;    Cow.  460.     See  White  v.  Story.  2  Hill,  543. 
Ark.  Rev.  St.  340-1.  I      (7)  Tilson  v.  Thomson,  10  Pick.  359. 


(a)  In  Massachusetts,  and  probably  elsewhere,  the  Probate  Court  has  exc/wsiye  jurisdiction, 
only  where  tlie  provisions  of  the  law  on  the  subject  can  be  enforced  by  no  other  tribunal. 
In  other  cases,  it  has  merely  concurrent  jurisdiction,  wliich  is  taken  away  by  tlie  previous 
commencement  of  proceedings  in  another  court.  Stearns  v.  Stearns,  16  Mass.  171.  See  as 
to  assignment  of  devised  lands,  St.  1839,  124.  In  Alabama,  it  is  held  that  the  statutory 
method  of  assigning  dower  is  merely  cumulative;  and  though  such  assignment  be  irregularly 
made,  yet  it  is  binding,  if  assented  to  by  the  wife,  especially  if  she  has  had  possession,  and 
there  is  no  fraud.  Johnson  v.  Neil,  4  Alab.  N.  S.  166.  The  common  law  courts  have 
jurisdiction  of  a  claim  for  dower  by  the  widow  of  a  tenant  in  common,  dying  seized  of  a 
fee-simple  in  one-third  of  the  lands,  and  a  fee-simplo  determinable  by  executory  devise  in 
one-sixth.     Evans  v.  Evans,  9  Barr,  190. 


CUAP.  XL] 


ASSIGNMENT  OF  DOWER. 


15i 


ception,  assumes  in  its  progress  the  character  of  an  adverse  and  com- 
pulsory suit. 

61.  In  ^Iissouri,(l)  where  the  widow  is  deforced  of  her  dower,  or 
cannot  have  it  without  a  suit,  or  an  assignment  is  made  unfairly,  or 
none  is  made  for  twelve  months  from  the  husband's  deatli ;  she  may 
bring  a  suit,  and  shall  recover  damages,  from  the  death _pf  the  husband, 
if  he  died  seized — otherwise  from  demand.  It  lies  against  any  one  in 
possession,  or  claiming  an  interest,  or  who  deforces  her.  The  suit  is  in 
form  a  petition,  and  the  assignment  made  by  commissioners;  but  a 
writ  of  possession  issues.  A  "  writ  of  dower,"  however,  may  still  be 
brought.(2)  In  New  Jersey,  the  right  of  suing  is  given  in  the  same 
words.     The  time  is  limited  to  forty  days.(3) 

62.  In  Vermont,  after  the  return  of  the  commissioners  who  assign 
dower,  "  said  dower  shall  remain  fixed  and  certain,"  and  all  parties 
concerned  shall  be  concluded.(4) 

63.  In  South  Carolina,(5)  the  form  of  application  for  dower  is  a  pe- 
tition  to  a  common  law  court,  which  issues  a  writ  for  admeasurement  to 
commissioners.  They  are  sworn  to  ''put  the  widow  in  full  and  peace- 
able possession,"  and  return  a  plat  of  the  land  with  their  doings,  which 
become  matter  of  record,  and  are  "final  and  conclusive." 

64.  In  New  York,(6)  where  an  ejectment  is  provided  for  the  recov- 
ery of  dower,  commissioners  are  appointed  to  admeasure  dower,  and 
possession  is  given  by  them ;  but  (it  seems)  no  writ  of  possession  is- 
sues. After  admeasurement,  the  widow  may  have  ejectment  for  the 
specific  lands  assigned  to  her. 

65.  In  the  same  State,  it  seems,  if  the  land  in  which  dower  is  claimed 
was  alienated  by  the  husband,  such  alienation  and  the  value  at  that 
time  are  not  subjects  of  inquiry  upon  trial  of  the  ejectment,  but  are 
to  be  brought  before  the  commissioners  for  admeasurement.  So,  a 
setthment  made  upon  the  wife  in  lieu  of  dower  is  not  to  be  inquired  into 
before  the  surrogate  ;  but  set  up  in  defence  to  anj-  action  for  the  land 
which  may  be  assigned  to  her.  Nor  have  the  admeasurers  a  right  to 
consider  any  post-nuptial  conveyance  by  the  husband  to  the  wife.(7) 

%Q.  In  De]aware,(S)  in  the  action  of  dower,  the  court  appoint  com- 
missioners, whose  return  is  conclusive,  and  the  foundation  of  a  writ  of 
possession  and  a  final  judgment  for  damages  and  equitable  costs. 

67.  Ordinarily,  the  assignment  of  dower  is  founded  on  an  application 
made  by  the  widow  herself. 

68.  But  in  Indiana,  Virginia,  Connecticut  and  New  York,  it  may 
be  done  on  application  of  the  heirs;  in  Illinois,  Michigan  and  Ver- 
rnont,  of  any  party  interested  ;  in  Missouri,  of  the  heir,"legatee,  guar- 
dian, executor,  &c.,  or  a  creditor  of  the  widow  or  her  second  husband.(a) 


(1)  Misso.  St.  229-30-1-2.    See  Poake  v. 
Redd,  14  Mis.  79. 

(2)  Misso.  St.  231-2. 

(3)  1  N.  J.  Rev.  C.  397. 

(4)  1  Ver.  L.  158. 

(5)  Scott  r.  Scott,    1    Boy,   504;   1    Brev. 
DL'.  270. 


(6)  2  N.  Y.  Rev.  St.  303,  343  ;  Borst  v. 
GritSn,  9  Wend.  307  ;  Ward  y.  Kilts,  12,  137. 
See  Code,  1851,  12. 

(7)  Hyde  v.  Hyde,  1  Wend.  G30. 

(8)  Dela.  St  1829,  164-5;  Rov.  Sts.  292; 
Doe  V.  Carrol,  IS  Ala.  148. 


(a)  In  this  Stale,  the  widow  and  children  may  join  in  a  petition  for  assifrnment  of 
dower  and  distribution  of  shares,  where  lands  lie  in  different  counties.  Commissioners  are 
appointed,  but  cannot  act,  if  a  division  is  impracticable.      St.  1838,  40.     In  Maryland,  a 


152 


ASSIGNMENT  OF  DOWER. 


[CHAP.  XI, 


In  Missouri  there  shall  be  no  damages.  In  New  Jersey,  the  guardian 
of  an  heir  may  apply  for  admeasurement.(a)  A  purchaser  of  the  widow's 
right  cannot  claim  an  assignment,  the  sale  being  void;  and  though 
made  with  the  consent  of  the  heir  or  his  guardian,  the  proceeding  is 
coram  nonjudice  and  void.  In  Alabama,  a  purchaser  from  the  husband 
may  claim  an  assignment  in  equity.  In  the  same  State,  if  the  widow 
occupies  the  husband's  dwelling-house,  the  owner  of  the  fee  is  bound 
to  move  for  an  assignment  of  dower.(l) 

69,  In  Tennessee  and  Ohio,  where  the  heirs  of  one  deceased  pray 
partition,  dower  shall  first  be  assigned  from  the  whole  land.  So  in 
Ohio,  where  land  is  directed  to  be  sold  by  administrators.(2) 

70,  In  Missouri,  one  interested  in  the  estate,  and  not  made  party  to 
a  suit  for  dower,  may  after  assignment  have  an  action  against  the 
widow  iov  admeasurement  of  dower;  alleging  either  that  she  was  not 
entitled,  or  an  undue  assignment.  If  the  latter  is  proved,  the  court 
shall  assign  anew,  and  award  a  writ  of  possession. (8)(i) 

7,  The  time^  after  which  the  widow  is  entitled  to  have  an  assignment 
of  dower,  is  variously  established  in  the  different  States,  In  Vermont 
and  Connecticut,  sixty  days  from  demand.  In  Michigan,  thirty  days. 
In  New  Hampshire,  Rhode  Island,  Maine,  Massachusetts,  Indiana  and 
Illinois,  one  month.  In  Missouri,  twelve  months  from  the  husband's 
death.     In  New  York,  six  months  from  the  time  the  right  accrued. (4)(c) 

72.  With  respect  to  the  time  Avitbin  which  a  suit  for  dower  must  be 
commenced,  by  the  English  law,  such  suit  has  been  held  not  to  be  with- 
in the  ordinary  statutes  of  limitation.  The  same  principle  has  been 
adopted  in  New  Hampshire,  Georgia  and  Kentucky,  and,  with  regard 
to  suits  in  equity,  in   Maryland, ((i)  although  lapse  of  time  may  bar  a 


(1)  Siglar  V.  Van  Riper,  10  Wend.  419; 
Ind.  Rev.  L.  210;  Illin.  do.  238,  Misso.  St. 
231 ;  Moore  v.  Waller,  2  Rand.  418  ;  1  N.  J. 
Rev.  C.  399 ;  Shields  v.  Batts,  5  J.  J.  Mar. 
15  ;  Jackson  v.  Aspell,  20  John.  411  ;  Mich. 
Rev.  St.  263  ;  Conn.  St.  189;  Verm.  Rev.  St. 
290.  See  Bancroft  v.  Andrews,  6  Gush.  493. 

(2)  Ten.    St.  1823,  46 ;  Walk.    Intr.  327. 


See  Swan.  299. 

(3)  Misso.  St.  232. 

(4)  1  Vr.  L.  158 ;  N.  H.  L.  187  ;  R.  I.  L.,  1 89 ; 
Smith's  St  168;  Crockeri'.  Fox,  1  Root,  227  ; 
Ind.  Rev.  L.  209;  lUin.  do.  236;  Misso.  St.  229; 
Mass.  Rev.  St.  G16  ;  2  N.  Y.  R.  S.  303 ;  Mich. 
Rev.  St.  263. 


commission  to  assign  dower  may  issue,  on  petition  of  the  widow  in  a  creditor's  suit.  Sim- 
mons V.  Tongue,  3  Bland,  344.  So  it  may  be  done  in  such  suit,  without  her  being  a  party, 
Watkins  r.  Worthington,  2  Bland,  512.  In  Mississippi,  a  decree  of  dower  without  legal  notice 
of  the  application  therefor,  is  not  binding  upon  the  heirs.  Muirhead  v.  Muirhead,  23 
Miss.  97.  In  Alabama,  upon  petition  of  the  widow,  and  citation  to  adverse  parties,  her 
right  may  be  determined  ;  and  upon  allotment  being  made,  she  is  put  in  actual  possession. 
Barney  v.  Frowner,  9  Ala.  101.  Dower  cannot  be  claimed  from  several  alienees  of  the 
husband  by  the  same  petition.     lb. 

(a)  It  -seems,  by  an  ancient  English  statute,  13  Ed.  I.  c.  7,  the  heir  or  his  guardian  might 
have  a  writ  for  admeasurement  of  dower.  See  1  Ky.  R.  L.  86. 
_  (6)  Where  do^wer  has  l>€en  assigned  to  a  widow,  on  her  petition  to  the  county  or  supe- 
rior courts  of  North  Carolina,  the  heirs  cannot  have  a  re-allotment,  on  petition.  If  they 
have  any  remedy,  it  is  not  by  petition.  Bowers  «.  Bowers,  8  Ired.  247.  In  South  Caro- 
lina, where  a  wrong  summons  had  been  served  on  a  respondent  in  dower,  for  which  reason 
he  had  neglected  to  appear  and  plead,  all  the  other  proceedings  were  set  aside;  for  if  the 
judgment  were  allowed  to  stand,  it  would  stand  as  obtained  through  misrepresentation, 
Williams  v.  Lanneau,  4  Strobh.  27. 

(c)  In  Arkansa.s,  if  dower  is  not  assigned  in  one  year  from  the  husband's  death,  or  three 
montlis  from  demand,  the  widow  may  file  a  petition  in  the  Probate  Court.     Rev.  St.  340-1. 

(d)  The  act  of  1839,  limiting  the  application  for  dower  to  seven  years  from  the  hu.sband's 
death,  applies  only  to  cases  where  the  husband  died  after  its  enactment.  Tooke  v.  Harde- 
man, 7  Geo.  20, 


CHAP.  XI.] 


ASSIGNMENT  OP  DOWKR. 


153 


bill  for  an  account.  But  by  a  recent  English  statute  (3  and  4. 
AVm.  IV,  c.  27 ;)  the  time  is  limited  to  twenty  years  from  the  hus- 
band's death.  In  New  York,  a  demand  for  dower  is  limited  to  twenty 
years  from  the  husband's  death,  or  the  i-ernoval  of  certain  disabilities. 
In  Ketitucky,(a)  twenty  years  arc  held  to  be  the  limitation  in  Ciian- 
cer3\  In  Massachusetts,  the  only  statutory  limitation  is_not*  less  than 
one  month,  nor  more  than  one  year,  after  demand.  In  South  Carolina 
and  New  Jersey,  the  lapse  of  twenty  years  is  a  bar  to  the  claim  of 
doAver.     In  Ohio,  the  lapse  of  twenty-one  years.(l) 

73.  In  Connecticut,  lapse  of  time,  though  connected  with  other 
equitable  grounds  of  defence,  constitutes  no  bar  to  the  claim  of  dower. 
Thus,  fifteen  years  after  the  husband's  death,  his  Avidow  claims  her 
dower.  In  the  meantime,  a  creditor  of  one  of  the  heirs  had  taken  his 
share  of  the  land,  and  the  heir  was  insolvent.  Held,  she  should  have 
her  dower  without  any  reference  to  this  incumbrance.(2) 

74.  A  statute  of  limitation  in  common  form  is  held  inapplicable  to 
dower,  upon  the  ground  that  such  statute  contemplates  the  case  of  a 
seizin  which  once  existed,  and  from  the  termination  of  which  tiie  stat- 
ute begins  to  run.  But  a  widow  before  assignment  is  not  seized,  and 
has  no  right  of  entry ;  nor  would  an  entry  be  of  any  avail  to  her. 
Nor  is  she  a  tenant  in  common  with  the  heirs.  She  may  make  a  de- 
mand, and  afterwards  sue  ;  or,  neglecting  to  sue  in  the  time  prescribed, 
may  make  a  new  demand.  Neither  can  the  limitation  run  against  her 
during  the  life  of  the  husband ;  for  she  had  then  a  merely  future  and 
contingent  interest,  and  the  allowance  of  such  a  limitation  would  ren- 
der a  conveyance  by  the  husband,  made  twenty  years  before  his  death, 
a  complete  bar  to  her  claim. (&)  So,  from  an  adverse  possession  of  twen- 
ty years,  the  law  will  not  presume  a  release  of  dower.(3)  But  it  has 
been  suggested  in  New  Hampshire,  that  the. circumstance  of  a  great 
lapse  of  time  might  be  left  to  the  jury,  as  a  ground  for  presuming  a 
release  of  dower.(-i) 

75.  A  statute  of  limitation  in  regard  to  dower  is  not  applicable  to  a 
case,  where  the  husband  died  before  the  statute  went  into  operation. 
But,  in  reference  to  such  a  case,  it  seems  the  statute  runs  from  the  time 
of  its  going  into  operation. (5) 

70.  A  purchaser  from  the  husband,  recovering  rents  after  his  death. 


(1)  4  Kent.  09;  Barnard  v.  Edwards,  4 
N.  H.  107  ;  Wells  v.  Beall.  2  Gill.  &  J.  468; 
Wilson  V.  M'Lenaglian,  1  M'Mul.  35;  Wake- 
man  V.  Roache,  Dudl.  i23  ;  Berrien  v.  Cono- 
ver,  1  Harri.  107;  Tuttle  v.  Wilson,  10  Oliio, 
24;  Riekard  v.  Talbird,  Rice,  158;  Ralls  v. 
Ilughe.s,  1  D/ina,  407  ;  1  N.  Y.  Rev.  St.  742; 
Mass.  Rev.  St.  C16;  Kiddall  v.  Trimble,  1  Md. 
Oh.  143  ;  Tooke  v.  Hardeman,  7  Geo.  20 ; 
Castori  V.  Caston,  2  Rich.  Eq.   1. 

(2)  Crocker  v.  Fox,  1  Root,  227. 


(3)  Barnard  v.  Edwards,  4  N.  II.  107; 
Moore  u.  Frost,  3  lb.  126;  Durham  v.  An- 
gler. 2  Appl.  242 ;  Parker  v.  Obear,  7  Met. 
27-8.  See  Ramsay  v.  Dozier,  1  Const.  S.  C. 
112;  Wells  V.  Beal,  2  G.  &  J.  468  ;  Hogle  v. 
Stuart,  Stfolm.  104;  1  Swift,  85;  Spencer 
V.  Weston,  1  Dev.  &  B.  213;  Gutlirie  v. 
Owen,  10  Yerg.  339. 

(4)  4  N.  H.  109. 

(5)  Say  re  v.  Wisner,  8  Wend.  661. 


(a)  Where  the  widow  of  one  of  the  vendors  was  a  claimant  in  the  first  instance  of  the 
surplu.s,  the  statnte  of  limitations  was  considered  to  begin  to  run  when  her  coverture  ended. 
Grundy  v.  Grundy,  12  B.  Mon.  269. 

(b)  Such  is  the  reasoning  of  the  court  in  New  Hampshire.  Whether  a  purchaser  from 
the  husband  would  in  such  case  be  regarded  as  holding  under,  or  adversely  to  him.     Qu. 


154 


ASSIGNMENT  OF  DOWER,  ETC. 


[CHAP.  XII. 


is  a  trustee  for  the  widow,  and  cannot  avail  himself  of  the  statute  of 
limitations.(l) 

77.  While  the  statute  of  limitations  does  not  operate  against  the 
claim  of  the  widow,  on  the  other  hand,  it  is  held  not  to  operate  in  her 

favoi\  as  against  the  heirs  of  the  husband.  Thus,  where  a  widow  con- 
tinued in  possession,  married  anew,  and  with  her  second  husband  occu- 
pied over  twenty-one  years ;  held,  the  heirs  of  the  first  husband  were 
not  barred. (2)  So,  an  informal  assignment  of  dower,  acquiesced  in  for 
twenty-one  years,  cannot  be  disturbed. (3) 

78.  The  death  of  a  widow  before  assignment  of  dower  extinguishes 
her  right.  Her  representatives  have  no  right  to  recover  its  fruits.(4) 
So,  where  she  dies  after  commencement  of  suit,  the  court  will  not  allow 
entry  of  judgment  as  of  a  prior  term.(5)  Nor  will  they  award  damages 
even  to  an  assignee  of  her  right,(6)  even  though  she  died  after  judgment 
in  her  favor.(7)  In  Maryland,  a  statute  provides  that  actions  for  dower 
shall  not  abate  by  the  death  of  either  party.(8) 


CHAPTER  XII. 


ASSIGNMENT   OF  DOWER.     WHAT   SHALL   BE  ASSIGNED   AND  BY  WHOM; 
AND  THE  EFFECT  OF  ASSIGNMENT, 


1.  By  metes  and  bounds  or  otherwise. 
3.  Practice  in  the  United  States. 
1.  Value  of  land  assigned. 
.  9.   AssigTUTient  in  commoa. 

12.  Partition  bj  husband. 

13.  Assignment   by   sheriff  and   commis- 

sioners. 
15.  Improper  assignment  by  sheriff. 


19.  Assignment  against  common  right. 
21.  Assignment  of  rent,  &c. 

23.  Assignment  must  be  absolute. 

24.  Assignment  bj^  parol. 
26.  Assignment  by  guardian. 

29.  Implied  warranty. 

30.  Entry  not  necessary. 

31.  Assignment  has  relation. 


1.  It  is  said  that  dower  must  be  assigned  hy  the  sheriff  by  metes  and 
bounds,  or  in  certain  closes  by  name,  and  that  any  other  assignment  is 
void.  But  the  heir  may  endow  tne  widow,  generally,  of  the  third  part 
of  all  the  lands  whereof  the  husband  was  seized.  And,  if  the  lands 
were  leased,  the  widow  and  lessee  shall  hold  in  common. (9) 

2.  And  where  the  nature  of  the  property  does  not  a  ,mit  of  an  assign- 
ment by  metes  and  bounds,  some  other  is  allowed.  Thus,  if  the  property 
consist  of  a  mill,  the  widow  shall  not  be  endowed  of  a  separate  third 
part,  nor  in  common  with  the  heir,  but  of  the  third  toll-dish  or  of  the 
whole  mill  for  a  certain  tinfe.  So  in  case  of  mines.  But  from  these 
dower  shall  be  assigned  by  metes  and  bounds,  if  possible.(lO) 

3.  This  principle  of  the  English  law  is  adopted  by  the  statute  law 


(1)  Tellman  v.  Bowen,  8  Gill.  &  J.  333. 

(2)  Cook  V.  Nicholas,  2  W.  &  S.  27. 

(3)  Robinson  v.  Miller,  2  B.  Mon.  287.  See 
Jolinson  V.  Neil,  4  Ala.  N.  166. 

(4)  1  Knapp,  225  ;  4  Kent.  70,  n. 

(5)  Rowe  V.  Johnson,  1  Appl.  146. 

(6)  lb. 

(7)  Atkins  v.  Teomans,  6  Met.  438.    See 
Sandback  v.  Quigley,  8  Watts.  460. 


(8)  Md    L.  407. 

(9)  Co.  Lit.  32,  b,  and  n.  1. 

(10)  Coates  v.  Cheever,  1  Cow.  460.  (This 
case  (p.  480)  contains  a  form  of  assignment  ia 
mines.)  See  Crouch  v.  Puryear,  1  Rand.  258  ; 
Heth  V.  Cocke,  lb.  344;  Dunsett  v.  Bank 
&p.,  6  Ohio,  76;  Whaler  v.  Story,  2  Hill, 
543 ;  Smith  v.  Smith,  5  Dana,  179. 


CHAP.  XI I] 


ASSIGNMENT  OF  DOWER,  ETC. 


155 


of  nearly  all    tlic  States,  and    undoubtedly  ])racticcd    upon  in  all  of 
tbern.dj 

4.  In  MassacluLsetts,  in  the  case  referred  to,  dower  may  be  assigned 
in  common.  In  Vermont,(a)  Maine,  New  Hampshire  and  Rhode  Island, 
where  no  division  can  be  made  by  metes  and  bounds,  or  the  widow  can- 
not he  endowed  of  the  premises^  slie  has  one  third  of  the  rents,jiiid  profits. 
In  Kentuck}^,  she  may  elect  to  have  the  property  every  third  year,  or 
one-third  of  the  rents,  &e.(2)  In  Alabama,  an  allotment  of  dower  can 
be  made,  under  the  statute,  only  where  it  can  be  designated  by  metes 
and  bouiids.(3) 

5.  In  Illinois^i)  and  Missouri, (4)  where  the  commissioners  for  assign- 
ing dower  report  that  a  division  will  be  injurious,  a  jury  shall  assess  the 
yeaily  value,  which  shall  be  paid  in  lieu  of  dower.  In  Missouri,  on 
failure  of  payment,  execution  issues.  So  for  any  arrears  due  at  the 
death  of  the  widow,  in  favor  of  her  executors.  A  similar  provision 
exists  in  South  Carolina. (c)  The  valuation  is  either  one-third  of  the 
annual  income,  or  one-third  of  the  whole  value  of  the  land  for  seven 
years;  and  where  the  commissioners  returned  one-third  of  the  value  of 
the  entire  fee,  their  return  was  set  aside.  In  Georgia,  if  the  property 
is  within  a  city,  village  or  public  place  of  business,  commissioners 
assign  dower  according  to  quantity  or  valuation,  at  their  discretion. 
If  otherwise,  the}'  assign  with  reference  to  shape  and  valuation. (5) 

6.  In  New  York,  where  the  lands  of  one  deceased  are  sold  by  order 
of  court,  if  the  widow  will  not  accept  a  sum  in  gross  in  lieu  of  dower, 
one-third  of  the  proceeds  shall  be  invested  for  her  benefit.(6)(c/)     In 


(1)  Tllin.  "Rev.  L.  238;  Ind  do.  210;  Tcnn. 
St.  1823,  46;  Walk.  Intr.  327;  Mich.  Rev. 
St.  263  ;  Ark.  lb.  341-2  ;  Wise.  lb.  334. 

(2)  Mass.  Rev.  St.  409;  K  H.  Rev.  St. 
329;  R.  I.  L.  189:  Verm.  Rev.  St.  290; 
Hvzer  v.  Stoker,  3  B.  Monr.  117;  Ky.  L. 
1844,  16-17;    1  Verm.  L.  153. 

(3)  Barney  v.  Frowuar,  9  Ala.  901. 


(4)  Illin.  Rev.  L.  238;  Misso.  St.  231-3; 
Riley  v.  Ciamorsan,  15  Mis.  331. 

(5)  1  Brev.  Dig.  271 ;  1  Bay,  504:  Russell 
V.  Gee,  4  Const.  S.  C.  254  ;  Ilayward  v.  Cuth- 
bert,  2,  626;  Ga.  St.  1839,  148. 

(6;  2  N.  Y.  Rev.  St.  .06;  4  Kent,  45 ;  N. 
Y.  St.  1840,  ch.  177.  See,  also,  N.  J.  St. 
1845,  100. 


(a)  In  this  State,  if  the  estate  is  insolvent,  the  widow  and  two-thirdsoftlie  creditors  may 
apree  on  a  provision  in  lieu  of  dower;  which  shall  be  valid,  if  approved  by  the  court. 
Verm.  R<iv.  St.  290-1. 

(h)  Where  the  widow  remains  in  possession  without  assignment,  there  cannot  be  a  par- 
tition on  sale  of  the  whole  premises.     Bonham  v.  Badley,  2  Gilm.  622. 

(c)  In  Alabama,  whore  a  compensation  for  dower  is  made  in  money,  the  decree  should 
be,  not  Ibr  a  gross  sum,  based  on  the  estimated  value  of  the  widow's  life  estate,  but  for  the 
annual  payment  of  the  annual  value  of  the  dower  interest  during  tbe  life  of  the  dowress, 
secured  by  a  lien  on  tlie  estate.     Beavers  v.  Smith.  11  Ala.  20. 

Where  an  assignment  cannot  be  made  of  a  portion  of  the  premises,  the  interest  of  one 
third  part  of  their  value  at  the  time  of  alienation,  is  a  just  criterion.     lb. 

Wiiere  the  principal  value,  in  such  case,  consists  of  buildings,  which  require  an  annual 
outlay  to  keep  thom  in  repair,  whether  the  dowress  should  contribute  her  portion  of  the 
expenses.     Qucere.     lb. 

(li)  The  statute  upon  tiiis  sutiject  is  applicable,  though  the  marriage  and  seizin  were  long 
prior  to  its  enactment;  and  is  not  for  this  reason  inconsistent  with  the  constitution  of  the 
United  States  or  tlie  State;  as  dower  arises,  not  by  contract,  but  by  operation  of  law.  Law- 
rence V.  Miller,  1  Sandf  516.  Such  sale  may  be  made,  though  dower  has  l)een  assigned  in 
equitj-.  lb.  And  a  sale  will  pass  a  title  to  the  lands  so  assigned,  as  well  as  those  for  which 
she  has  merely  a  right  of  action.  lb.  But  it  is  held,  that  where  the  estate  is  an  entire  farm, 
and  dower  has  been  assigned  ;  the  sale  should  be  of  the  whole  farm,  subject  to  the  widow's 
life  estate  in  a  portion  of  it.     Maples  v.  Howe,  3  Barb.  Ch.  611. 

In  a  suit  for  partition,  the  contingent  or  inchoate  right  of  dower  was  determined  by  a 
master  under  order  of  tbe  court,  by  virtue  of  the  New  York  Statute,  passed  April  28,  1840, 


156  ASSIGNMENT  OF  DOWER,  ETC.  [CHAP.  XII. 

Maryland,  (l)(a)  upon  sucTi  sale  by  application  of  the  heirs,  the  dower 
land  shall  be  reserved,  unless  the  widow  consent  to  a  sale  of  the  whole, 
she  receiving  a  share  of  the  proceeds,  not  more  than  one-seventh,  nor 
less  than  one-tenth.  In  Pennsylvania,(2)  where  partition  of  an  estate 
cannot  advantageously  be  made,  and  the  whole  is  therefore  assigned  to 
one  or  more  heirs,  the  widow  shall  receive  for  her  dower  an  annual  sum, 
which  shall  remain  charged  upon  the  land  as  a  rent,  to  be  apportioned 
among  such  heirs.  If,  for  want  of  an  assignment  to  one  heir,  the  land 
is  sold,  the  purchaser  shall  retain  one-third  or  one-half  (according  to 
circumstances)  of  the  purchase-money,  which  shall  be  a  charge  on  the 
land  for  payment  of  the  interest  to  the  widow.  The  right  of  the  widow 
to  her  annuity,  in  lieu  of  dower,  is  personal  to  herself,  and  does  not 
pass  by  subrogation  to  one  of  several  heirs,  who  has  paid  more  than  his 
share,  nor  can  the  widow  exercise  her  right  of  distress-  more  than 
once.(i) 

(1)  2  Md.  L.  520.  I  "W.  &  S.  400;  McCarthy  v.  Gordon,  4  Whan. 

(2)  Purd.    Dig.    407-12-15;    Mentzer  v.    321.     See  Beeson  v.  McNabb,  2  Barr,  422. 
Menor,  8  Watts,  296  ;  Shouffler  v.  Coover,  1 ' 


and  the  same  was  paid  into  court.  After  the  death  of  the  wife,  the  husband  petitioned  to 
have  ihe  money  paid  to  him.  Held,  that  the  sum  estimated  by  the  master  was  the  present 
worth  of  the  wife's  dower,  and  was  absolute  and  personal,  and  that  on  her  death  tlie  hus- 
band was  entitled  to  it  jure  mariti.     Bartlett  v.  Janeway,  4  Sandf.  Ch.  396. 

Dower  cannot  be  assigned  in  a  proceeding  for  partition.     Tanner  v.  Niles,  1  Barb.  560. 

A  purchased  the  shares  of  some  of  the  tenants  in  common  of  a  farm,  while  a  suit  in  equity 
for  a  partition  was  pending.  The  decree  directed  a  sale.  A  liaving  deceased,  his  widow 
was  held  entitled  to  dower  in  the  proceed.s.     Church  v.  Church,  3  Sandf  Ch.  434. 

A  purchased  the  land,  and  entered,  but  died  before  receiving  a  deed,  or  paying  the  whole 
of  the  purchase-money.  Held,  his  widow  had  an  inchoate  right  of  dower,  subject  to  the 
payment  of  the  residue  of  the  purchase-money.     lb. 

Exceptions  having  been  taken  by  the  creditors,  the  widow  was  exonerated  from  defray- 
ing any  portion  of  the  costs  of  the  proceedings.      lb. 

In  Wisconsin,  where  the  court  orders  a  sale,  the  executor,  &c.,  may  coutract  with  the 
widow  to  receive  a  certain  sum  in  lieu  of  dower.     Wis.  St.  1853,  78-9. 

(a)  In  this  State,  the  widow  may  agree  with  the  heir,  &c.,  in  lieu  of  an  assignment  of 
dower,  tliat  he  shall  lease  the  lands  and  pay  her  one-third  of  the  rent;  and  she  may  main- 
tain assumpsit  against  him  therefor.  Marshall  v.  McPherson,  8  Gill.  &  J.  333.  Dower  shall 
be  assigned  before  partition  ;  but,  if  the  widow  consents  to  a  sale  by  a  writing  filed  in  court, 
the  land  is  sold  free  of  dower,  and  she  receives  a  share  of  the  price.     Md.  St.  753. 

A  widow  having  been  held  entitled  to  an  allowance  from  the  proceeds  of  sales  of  partner- 
ship lands,  in  lieu  of  dower,  the  husband  having  died  in  1825,  and  the  sale  not  being  made 
till  1845 ;  held,  the  age  of  the  widow  at  the  husband's  death  should  be  taken  in  fixing  her 
allowance  under  the  Ciiancerj'  rule.     Goodburn  v.  Stevens,  1  Md.  Ch.  420. 

(6)  Wliere  an  administrator,  under  a  decree  of  court,  conveys  property  contracted  to  be 
sold  by  his  intestate,  the  price  is  personalt3%  and  the  widow,  who  releases  her  dower,  has 
one-third  absolutely.     Drenkle's  E.state,  3  Barr,  377. 

If  the  purchaser  agreed  to  take  the  land  incumbered  with  her  title,  she  could  have 
claimed  both  her  dower  and  a  third  of  the  proceeds.     Per  Gibson,  C.  J.,  ib. 

Where  the  husband  was  a  tenant  in  common,  if  no  partition  is  made  within  a  year,  the 
widow's  dower  is  charged  upon  the  wliole  land.  If  partition  is  subsequently  made,  it  may 
be  charged  ou  his  share  alone.  In  case  of  sale,  her  interest  shall  be  protected.  Penns.  St. 
1843,  300. 

In  Florida,  where  lands,  from  which  a  widow  was  dowable,  are  converted  into  money, 
the  money  should  not  be  ordered  to  be  put  out  at  interest,  by  a  master  in  Chancery,  unless 
there  is  a  well  grounded  fear  of  loss,  if  it  remains  in  her  possession.  Osborne  v.  Van  Horn, 
2  Florida,  360. 

In  Delaware,  provision  is  made  for  securing  the  rights  of  tenants  in  dower  and  by  the 
curtesy,  where  a  sale  is  made  of  land  held  in  common.  Dela.  St.  1843,  489-91.  In  Wis- 
consin, in  case  of  the  sale  by  an  administrator  of  land  in  which  the  widow  is  dowable,  he 
may  contract  vvitii  the  heir  to  commute  her  dower,  and  hold  in  trust  such  part  of  the  price, 
as  iihe  would  be  entitled  to  on  the  principle  oi annuities.     Wise.  Sts.  1853,  78. 


DHAP.  XII.]  ASSIGNMENT  OF  ])0\VEK,  ETC.  157 

7.  The  assignment  of  dower  sliull  be  such  as  to  give,  not  one-third 
Df  the  lands  in  quantity,  but  one-third  of  the  income^  or  rents  and 
profits,  according  to  the  quantity,  quahty,  and  productiveness  of  the 
lands;  and  such  as  is  best  calcuhitod  ibr  the  convenience  of  the  widow 
md  the  heirs,  and  will  least  disturb  the  will,  the  provisions  of  which 
in  her  favor  she  renounces.(I) 

8.  In  Alabama,  Illinois,  North  Carc)lina(a)  and  Kentuclcy7(2)  the  as- 
signment shall  include  the  liusband's  dwelling-house,  or,  in  Alabama, 
1  portion  of  it,  if  it  would  do  injustice  to  assign  the  whole.  In  Ken- 
tucky, it  makes  no  difference  that  the  widow  docs  not  herself  occupy 
the  niaiision. 

9.  If  the  widow  waives  an  assignment  by  metes  and  bounds,  it  may 
be  made  in  common. (3) 

10.  This  is  the  only  practicable  mode,  where  th(^  husband  at  his  death 
was  a  tenant  in  common  with  another  person. (•l)(i) 

11.  In  one  case,  in  Massachusetts,  dower  was  had  in  vn'm  of  the 
great  sheep  pasture  in  Nantucket.(5) 

12.  Contrary  to  the  general  rule,  that  no  act  of  the  husband  alone 
can  affect  the  wife's  claim. of  dower,  if  partition  were  made  of  lands 
held  by  him  in  common  during  coverture,  she  shall  have  dower  only 
in  the  portion  allotted  to  the  husband  ;  upon  the  grounds,  that  the  hus- 
band's co-tenant  might  have  enforced  partition  by  legal  process,  and 
that,  partition  being  an  incident  to  the  estate,  the  wife's  inchoate  right 
of  dower  was  acquired  subject  thereto.  But  fraud  on  the  part  of  the 
husband,  as,  for  instance,  in  taking  for  his  share  woodland,  not  subject 
to  dower,  would  avoid  the  partition  as  to  the  widow.(6)(c) 

13.  It  is  said,  that  the  sheriff  must  assign  for  dower  a  third  part  of 
each  manor;  or  a  third  part  of  the  arable,  meadow  and  pasture;  but 
the  heir  may,  with  the  widow's  assent,  assign  tiie  whole  of  one  manor.(7) 
In  North  Carolina, (8)  a  statute  provides  that  the  assignment  need  not 
embrace  one-third  of  each  tract.     In  Indiana,  if  the  widow  elects  one 


(1)  lloby  V.  Hoby.  1  Ver.  218;  Leonard 
V.  Leonard,  4  Mass.  533  ;  Miller  v.  Miller,  12, 
454;  Conner  v.  Slieperd,  15,  167;  1  N.  0. 
Rev.  St.  613-4;  lUin.  do.  237;  4  Kent,  63, 
n.  c;  Alab.  L.  259;  7  J.  J.  Mar.  637; 
M'Daniel  v.  M'Daniel,  3  Ired  61 ;  Stiver  v. 
Cawtliorn,  3  Battl.  501;  Sniit,li  v.  Smith,  5 
Dana,  179. 


(4)  4  Dane,  673;  Rovve  v.  Power,  5  B.  & 
P.  1  ;  Co.  Lit.  32  b. 

(5)  4  Dane,  674. 

(6)  Potter  V.  Wheeler,  13  Ma.ss.  504.  See 
Jackson  v.  Edwards,  22  Wend.  498;  Rey- 
nard V.  Spence,  4  Beav.  103  ;  Totteii  v.  Stuy- 
ve.sant,  3  Edw.  299. 

(7)  1  Cruise,  132;  1   Bay,  504.     That  as- 


(2)  Alab.  L.  259;  White  v.  Clark,  7  Mon.  i  sent  cures  a  wrong  assignment,  .see  Johnson 
642;  Illin.  Rev.  L.  237.  |  v.  Neil,  4  Alab.  N.  S.  1G6. 

(3)  Co.  Lit.  34  b,  n.  1.  1      (8)  1  N.  C.  Rev.  St.  614. 


(a)  But  the  widow  is  entitled  to  only  one-third  of  the  real  estate,  in  the  wliole,  including 
the  mansion.  And  if  this  would  give  her  more  than  her  third,  she  can  have  onl}'  part  of  it. 
Stiver  v.  Cawthorn,  4  Dev.  &  B.  501. 

(b)  In  Ma.ssachuseits,  by  a  late  statute,  1842,  p  231.  the  judge  of  probate  may  authorize 
the  coniniisisiuncrs,  first  to  make  partition,  and  then  assign  dower  from  the  part  allotted  to 
the  husband's  estate. 

(t)  But  where  a  wife  concurs  in  the  partition  of  her  hu.sband's  land,  releasing  her  right 
to  the  other  tenants  in  their  share  of  the  property,  and  tiie  husband's  portion  is  conveyed 
to  trustees  of  his  will;  she  has  dower  in  the  wiiole,  not  an  undivided  part,  merely,  of  such 
portion.  Reynard  v.  Spence,  4  Beav.  103.  The  rule  in  the  text  applies  where  a  division 
is  made,  in  equal  proportions,  by  mutual  releases.  But  there  is  no  such  limitation  to  the 
right  of  the  widow,  il,  for  a  valual)le  consideration,  the  division  was  purposely  made  in  un- 
equal proportions.     Mosher  v.  Mosher,  32  Maine,  412. 


158 


ASSIGNMENT  OF  DOWER,  ETC. 


[CHAP.  XII 


tract,  it  may  be  assigned  to  her.  In  Kentucky,  it  is  held,  that  when 
the  iiusband  has  conveyed  away  part  of  a  tract  of  land,  dower  shall  be 
assigned,  if  possible,  in  the  remaining  part.(l) 

14.  But  commissioners  appointed  to  assign  dower  are  bound,  in  gen 
eral,  like  the  sheriff  in  whose  place  they  stand,  to  assign  one  third  par 
of  each  parcel  of  land. (a)  If  they  assign  one  third  ol  a  single  tract 
creditors  of  the  husband  may  appear  and  object;  because,  if  this  wen 
allowable,  the  commissioners  might  assign  wholly  from  land  of  whicl 
the  husband  died  seized,  and  the  creditors  would  have  no  claim  againsi 
that  which  he  had  conveyed  in  his  lifetime.(2) 

15.  Where  the  sheriff  assigns  dower  improperly,  the  court  will  pun 
ish  him  and  set  aside  the  assignment, 

16.  A  sheriff  returned,  that  he  had  assigned  for  dower,  in  a  house 
the  third  part  of  each  chamber,  and  had  chalked  it  out.  Held,  an  idl( 
and  malicious  assignment,  and  the  sheriff  was  committed. (o)(^) 

17.  A  sheriff  refused  to  make  an  equal  allotment  of  dower,  and  tool 
sixty  pounds  for  serving  the  writ.  He  was  committed,  and  an  infor 
mation  ordered  against  him.(4) 

18.  A  third  part  of  lands  containing  a  coal-work  was  assigned  bj 
the  sheriff  for  dower,  without  reference  to  the  latter.  Upon  a  bill  ir 
equity  by  the  heir  to  set  aside  the  assignment  as  fraudulent,  and  upor 
his  oiferiug  dne-third  of  both  the  land  and  coal-wo2'k  by  way  o 
rent  charge ;  held,  the  widow  should  accept  this  offer  or  be  endowec 
anew.(5) 

19.  An  assignment  of  one  tract,  in  satisfaction  of  the  widow's  clain 
upon  each  separate  portion  of  the  husband's  lands,  is  termed  an  assign 
ment  against  common  right.  The  effect  of  it  is,  to  impose  upon  her  th( 
risk  of  any  defect  in  the  title  to  the  land.  If  the  estate  assigned  turnj 
out  to  be  more  valuable  than  a  third,  she  may  still  hold  it;  and  on  th( 
contrary,  if  it  proves  less  valuable,  she  must  bear  the  loss.  The  prin 
ciple  is,  that  she  has  accepted  what  could  not  have  been  lawfully  assignee 
to  her  against  her  will.  It  is  a  voluntary  release  of  a  legal  right,  foi 
something  supposed  to  be  equivalent,  or  more.{6) 


(1)  Tnd.  Eev.  L.  210;  Lawson  v.  Morton, 
6  Dana,  471.  See  Childs  v.  Smith,  1  Md. 
Gh.  483. 

(2)  Scott  V.  Scott,  1  Bay,  504;  Wood  v. 
Lee,  5  Mon.  55. 


(Citei 


(3)  Abingdon's  case,  1  Cruise,  164 
Howard  v.  Candish,  Palm.  264.) 

(4)  Longvill's  case,  1  Keb.  743. 

(5)  Hoby  V.  Hoby,  1  Vern.  218. 

(6)  1  Pick.  317-18;  Wise.  Rev.  St.  336. 


(a)  Where  the  plaintiff  in  her  complaiut  describes  the  lands  in  the  possession  of  severa! 
tenants  occupying  different  portions  thereof,  the  defendant  occupying  but  a  small  part; 
claims  for  her  dower  one  third  of  the  whole,  and  obtains  a  verdict ;  upon  filing  the  re^ 
cord  of  judgment,  commissioners  are  to  be  appointed,  to  make  admeasurement  of  dower  out 
of  the  lands  which  the  jury  have  found  in  the  possession  of  the  defendant,  and  out  of  which 
the  plaintiff  is  entitled  to  dower.     Ellicott  v.  Mosicr,  11  Barb.  574. 

(h)  In  New  York,  it  is  held,  that  particular  rooms  in  a  house  may  be  assigned  for  dower, 
with  tlie  right  of  using  stairwuys,  halls,  &c.,  for  the  purpose  of  passing;  and  that  the 
heir  cannot  object  thereto.  AVhether  tiie  widow  miirht  object,  qu.  Wliite  v.  Story,  2 
Hill,  543. 

In  Alabama,  an  a.ssignment  of  dower  may  designate  the  lands  by  the  designation  of  them 
at  the  land  ofQce.  They  need  not  be  described  by  metes  and  bounds.  Adams  v.  Barrow, 
13  Ala.  205. 

A  sheriff  returned,  that  commissioners  to  assign  dower  had  been  duly  sworn,  and  pro- 
ceeded to  iissigt)  it,  "  as  shown  by  tlie  annexed  return."  Held  sufficient,  the  return  being 
presumed  to  be  that  of  the  commisoners.    lb. 


CHAP.  Xir.]  ASSIGNMENT  OF  DOWER,  ETC.  159 

20.  The  whole  of  one  parcel  of  land  was  assigned  to  the  widow  for 
life,  to  be  holden  in  full  satisfaction  of  her  dower,  and  subject  to  all  the 
conditions  and  liabilities,  and  with  all  the  privileges  and  incidents,  of 
dower.  The  land  assigned  proved  to  be  under  mortfrage,  and  at  the 
time  of  assignment  the  mortgagee  was  in  possession.  Held,  the  widow 
should  not  have  dower  in  other  land  of  the  husband,  held  by  an  inno- 
cent purchaser.(l)(a) 

21.  Lord  Coke  says,  an  assignment  of  lands  in  which  the  widow  is 
not  dowable,  or  of  a  rent  issuing  out  of  them,  is  no  bar  of  dovver.(i)  Oth- 
erwise, with  a  rent  issuing  from  lands  of  which  she  is  dowable.  Thus, 
if  it  is  necessary  to  assign  dower  in  the  capital  dwelling-house,  and  the 
widow  refuses  a  single  room  or  chamber  in  it,  she  shall  have  a  rent 
therefrom.  The  statutory  provisions  of  different  States  in  regard  to 
the  assignment  of  rents  and  profits,  in  lieu  of  the  lands  themselves, 
have  already  been  stated. (2) 

22.  It  is  said,  if  the  heir  assign  dower  of  lauds  of  which  the  husband 
was  seized,  but  the  widow  is  not  dowable,  she  is  tenant  in  dower.  So, 
if  she  be  endowed,  and  afterwards  exchange  with  the  heir  for  other 
lands,  which  the  husband  owned  in  fee,  she  shall  hold  in  dower,  and 
by  the  husband.(3) 

23.  The  assignment  of  dower  must  be  absolute.  Any  condition,  ex- 
ception, or  reservation  annexed  to  it — as,  for  instance,  a  reservation  of 
trees — will  be  void  ;  or  the  widow,  at  her  election,  may  sue  for  her 
dower  anew. (4) 

24.  At  common  law,  the  heir  may  assign  dower  by  a  mere  parol 
declaration,  that  the  widow  shall  have  certain  lands,  or,  generall}-,  one- 
third  of  all  the  lands  of  which  the  husband  died  seized  ;  and  an  entry 
upon  the  lands  assigned,  will  vest  in  the  widow  a  perfect  title.  The 
statute  of  frauds  does  not  j'cnder  necessary  an  assignment  in  writing. 
The  widow  holds  her  estate  by  Iciw^  and  not  by  contract.  And  after  an 
as.signmcnt  of  dower  by  the  owner  of  the  land,  though  made  by  parol, 
he  cannot  dispute  that  the  land  was  subject  to  dower.(5) 

25.  The  same  principle  seems  applicable  to  an  assignment  by  any 
other  tenant  of  the  freehold.     Thus,  one  of  two  persons,  to  whom  the 

(1)  Jones  i;.  Brewer,  1  Pick.  314;  French  I  (4)  Co.  Lit.  34  b.  ;  Wentworth  v.  "Went- 
V.  Pratt,  27  Maine,  381.  worth,  Cro.  Ehz.  451. 

(2)  Co.  Lit.  34  b. ;  Turney  v.  Sturges,  Dyer,  (5)  Co.  Lit.  35  a;  Baker  v.  Baker,  4  Greenl. 
91.  See  White  v  Story,  2  Hill,  543;  Per- !  67  ;  Conant  v.  Little,  1  Pick.  191;  Shattnck 
kins.  40G;   Bickley  v.  Bickloy,  And.  287.         I  v.  Grag-<r,  23  Pick.  88;  Jolin.son  v.  Neil,  4 

(3)  Co.  Lit.  34  b.  n.  9.  1  .\lab.   X.   S.    1G6;    Bojers  v.    Newbanks,  2 

I  Cart.  388. 


(a)  Bxit  where  a  widow  has  recovered  judgment  for  her  dower,  and  agrees  with  a  war- 
rantor or  tiie  tenant  to  receive  an  annual  sum  for  life  in  lieu  thereof,  which  is  not  paid,  she 
may  recover  her  dower.  Sargeant  v.  Roberts,  34  Maine,  135.  Such  a  transaction  can  op- 
erate neither  as  a  lease  nor  release.     There  is  no  privity  Ijetween  tlio  parties  to  it.     lb. 

(l))  In  order  to  bar  tlie  widow  ol  lier  action  for  dower,  where  rent  has  been  assigned  with 
her  consent,  and  accepted  by  her,  it  must  appear  that  the  rent  will  endure  for  her  life.  Ellicott 
V.  Mosicr,  1 1  Barb.  574 

A  p  ea  in  an  action  for  dower,  alleging  that  the  husband  died  intestate;  that  the  defendant 
occupied  tiie  premises  under  a  lease  (rom  him,  and  that  the  plaintiff  and  heirs  had  collected 
and  received  the  rents  reserved  ever  since  his  death  as  the  same  became  due,  and  had  divided 
and  enjoyed  the  rents,  in  proportion  to  the  interest  of  each  in  the  premises,  the  plaintiff 
receiving  one-third  in  lieu  of  dower;  and  insisting  that  the  plaintiff  was  thereby  estopped 
from  maintaining  the  action  ;   constitutes  no  defence.     lb. 


160 


ASSIGNMENT  OP  DOWER,  ETC. 


[CHAP.  XII. 


husband  bas  transferred  the  land  in  joint  tenancy,  may  assign  a  third 
part  of  it,  and  thereby  bind  his  companion. (1) 

26.  So,  the  guardian  of  an  infant  heir  may  validly  assign  dower. (2)(a) 

27.  But  in  Missouri,  Kentucky,  New  Jersey  and  yirginia,(3)  where 
the  widow  sues  such  guardian  for  her  dower,  and  he  endows  her  by 

favor^  or  "  makes  default,  or  by  collusion  defends  the  plea  faintU',"  the 
heirs,  on  becoming  of  age,  may  avoid  the  assignment. 

28.  In  Ohio,(4)  the  assignment  of  dower  by  the  heir  or  other  party 
interested  must  be  made  by  deed. 

29.  In  the  assignment  of  dower  there  is  an  implied  warranty,  that 
the  tenant,  if  impleaded,  may  vouch  the  heir ;  and,  if  evicted  by  par- 
amount title  from  the  lands  assigned,  she  shall  be  endowed  anew  \{h)  ex- 
cept in  the  case  above-mentioned,  of  an  endow mex\i  agavist  common  right. 
But  it  is  said,  if  the  assignment  of  dower  were  made  by  an  alienee  of  the 
husband,  the  widow  shall  not  vouch  him  to  be  newly  endowed,  for  want 
of  privity.  A  new  assignment  is  the  widow's  only  remedy.  She  has  no 
claim  upon  the  covenants  in  her  husband's  deed,  which  can  be  enforced 
by  the  heirs  alone.  On  the  other  hand,  if  after  assignment  of  dower 
the  heirs  are  deprived  of  any  part  of  their  lands  by  a  claim  adverse  to 
the  husband's  title,  there  shall  be  a  new  assignment,  although  the  dower 
land  has  not  been  taken.  And  in  case  of  an  excessive  assignment  the 
widow  shall  account  for  rents,  &c.,  with  an  allowance  for  anj'  improve- 
ments.    So,  also,  her  second  and  third  husbands.(5) 

29  a.  Where  the  widow  surrenders  her  dower,  in  part  satisfaction  of 
a  claim  against  an  estate  of  which  she  is  administratrix,  and  the  settle- 
ment is  afterwards  set  aside  at  the  instance  of  the  creditor ;  she  will  be 
entitled  to  her  dower  or  its  value.(6) 

29  b.  A  widow  being  evicted  from  an  estate  in  which  she  had  a  right 
of  dower,  by  a  suit  to  enforce  a  lien  for  the  purchase-money,  to  which 
she  was  not  a  party ;  held,  her  right  of  dower  was  not  divested,  and 
she  was  entitled  to  that  proportion  of  the  rents  and  profits,  from  the 
time  the  land  was  sold  under  a  decree  in  such  suit,  which  her  right  of 
dower  bore  to  the  value  of  the  land,  less  the  unpaid  purchase- 
money.  (7) 

29  c.  Where  the  husband's  conveyance  is  set  aside  as  fraudulent 
ag;"iinst  creditors,  and  the  land  sold  and  conve}- ed  under  a  decree  for 
their  benefit  after  his  death,  the  widow  shall  have  dower,  though  she 
joined  in  the  conveyance. (8) 


(1)  Co.  Lit.  35  a,  n.  1  and  2. 

(2)  Jones  v.  Brewer,  1  Pick.  314;  Boyers 
V.  Newbanks,  2  Cart.  388. 

(3)  Misso.  St.  231-2;   1  Ky.  Rev.  L.  575  ; 
1  N.  J.  Rev.  C.  398;  1  Vir.  Rev.  C.  171. 

(4)  Walk.  Intro.  326. 

(5)  Bustard's   case,  4  Cep.  122  a. ;    Mass. 
Rev.  St.  411;  Scott  v.   Hancock,  13  Mass. 


168;  Bedingfield's  case,  9  Co.  17  b.  ;  St. 
Clair  V.  Williams,  7  Ohio,  part  2,  110;  Sin- 
gleton V.  Singleton,  5  Dana,  89 ;  Term.  Rev. 
St.  290 ;  Wise.  ib.  335. 

(6)  Puison  V.  Williams,  23  Miss.  64. 

(7)  Willet  V.  Beatty,  12  B.  Mon.  172. 

(8)  Summers  v.  Babb,  13  Illin.  483. 


(a)  In  Maine  and  Arkansas,  statutes  so  provide.  Ark.  Rev.  St.  340;  Me.  Ib.,  463.  lu 
England,  an  infant  cannot  assign  dower,  ad  ostium.  Co.  Lit.  34  a.  In  Wisconsin,  where 
dower  has  been  wrongly  recovered  from  an  infant,  he  may  recover  it  back.  Rev.  St.  336. 
It  is  held  in  Indiana,  that  dower  need  not  be  demanded  from  an  infant ;  that  at  common 
law  lie  lias  no  power  to  assign  dower,  and  if  he  does  it,  and  the  assignment  is  excessive, 
a  writ  of  admeasurement  lies.  McCormick  v.  Taylor,  2  Cart.  336.  But  he  cannot  defeat  it 
by  entry.     And  an  admeasurement  lies  only  for  him,  not  for  the  widow.     Ib. 

(6)  In  Arkansas,  if  land  assigned  for  dower  is  deforced,  the  widow  has  double  damages. 


CHAP.  XII.] 


ASSIGNMENT  OF  DOWKR,  ETC. 


IGl 


30.  By  the  as.signmcnt  of  dower,  tbe  widow  acquires  a  freehold 
estate  without  livery  of  seizin  iu  England,  and  probably  in  this  country 
without  entry  ;  because  dower  is  due  of  common  right,  and  the  assign- 
ment is  an  act  of  equal  notoriety. (l)(n) 

31.  After  assignment,  the  law  regards  the  widow,  hy  relation^  as 
having  had  possession  from  the  death  of  the  husband.-  She  acquires 
no  new  freehold,  but  comes  to  her  dower  in  the  per^  hy  her  husband, 
and  is  in,  iu  continuation  of  his  estate  ;  while,  on  the  other  hand, 
the  heir  is  considered  never  to  have  been  seized  of  this  portion  of  the 
land.(2) 

32.  Upon  this  principle,  where  a  disseizor  dies,  although  the  dis- 
seizee cannot  enter  upon  the  heir,  yet,  if  dower  be  assigned  in  the  laud, 
he  may  enter  upon  this  portion  of  it;  because  the  widow  claims  under 
the  husband,  and  not  under  the  heir.(3)  So  the  widow,  after  assign- 
ment, becomes  entitled  to  the  back  rents.(4:) 

33.  The  principle  of  the  common  law  above  stated,  so  far  as  it  avoids 
the  seizin  of  the  heir  in  regard  to  the  lands  of  which  the  widow  is 
endowed,  can  hardly  be  regarded  as  in  force  in  the  United  Stutcs.(5) 
Indeed  the  English  law  itself  seems  to  be  confused  and  contradictory 
upon  this  subject ;  for  w^hile  the  assignment  of  dower  is  said  to  defeat 
the  seizin  of  the  heir,  it  is  also  laid  down  that  such  assignment  consti- 
tutes a  species  of  subinfeudation,  and  the  widow  holds  as  a  tenant  to 
the  heir.(6)  But  whatever  may  be  the  rule  of  law  in  England,  in  the 
United  States  the  ancient  doctrine  of  seizin  has  been  so  far  modified, 
either  by  express  legislation  or  by  necessary  implication  therefiom, 
sanctioned  by  usage  and  adjudication  ;  that  for  all  practical  purposes, 
it  seems,  the  heirs  of  a  husband  hold  a  vested  reversionary  interest  in 
the  lands  from  which  the  wife  is  endowed,  subject  to  conveyance,  de- 
vise, distribution  and  legal  process.  This  peouliarity  in  American  law, 
however,  is  a  subject  deserving  of  careful  examination,  and  v/ill  be 
particularly  considered  in  a  subsequent  portion  of  this  work.(i) 


(1)  Co.  Lit.  35  a;  4  Dane,  670. 

(2)  ^.Viuclliam  v.  Portland,  4  Mass.  388; 
Norwood  V.  Marrow,  3  Battl.  448.  See  Eoss 
V.  Ross,  12  B.  Mod.  437. 

(3)  Lit  393. 


(4)  3  J.  J.  Mar.  48. 

(5)  Cook  V.  Hammond,  4  Mas.  467  ;  Fay  v. 
Hunt,  5  Pick.  400-1-2. 

(6)  Park,  344. 


(a)  Lord  Coke  remarks,  in  regard  to  the  legal  requisites  of  an  assignment  of  dower,  '"here 
be  two  lliitigs  that  the  law  doth  delight  in,  viz.:  1,  to  have  this  and  the  like  openly  and 
solemnly  done;  2,  to  liave  certaintie,  which  is  the  motiier  of  quiet  and  repose."  Co. 
Lit.  34  b. 

{h)  A  distinction  seems  to  have  been  made  in  Massachusetts  between  curtesy  and  dower, 
as  to  their  effect  in  defeating  the  seizin 'of  liie  heir,  in  which  respect  they  are  alike  at  com- 
mon law.  The  former  lias  been  held  not  to  defeat  such  seizin  ;  wliile,  as  to  the  latter,  the 
English  rule  is  said  to  be  in  force.  (See  4  Mas.  467  ;  3  lb.  308  ;  also  Robison  v.  Codman, 
1  Sumner,  130.)  Iu  North  Carolina,  both  the  principles  stated  in  tlie  text  are  recognized 
as  equally  in  force;  to  wit,  ihut  the  widow  holds  of  the  heir  or  reversioner,  and  at  the  same 
time  lier  estate  is  a  continuation  of  the  husband's,  and,  in  case  of  any  intervening  title,  re- 
lates back  to  his  death.     Norwood  v.  Marrow,  4  Dev.  &  B.  442. 

A  died  seized  of  lands,  and  leaving  a  widow  and  six  children,  of  whom  Band  C  were  two. 
An  application  was  made  by  the  heirs  of  A  for  partition,  and  au  attorney  of  some  of  the 
children,  minors,  appeared  for  them,  being  appointed  guardian.  The  commissioners  ap- 
pointed 10  make  partition  also  assigned  dower  to  the  widow.  She  entered  on  tiio  land 
assigned,  and  afterwards  joined  with  C,  one  of  the  children,  in  a  conveyance  of  his  part, 
which  came  to  K  by  sundry  mesne  conveyances.  B  brought  ejectment  against  K  for  the 
part  conveyed  to  him.  Held,  the  assignment  of  dower  displaced  the  heir's  seizin,  and  re- 
lated back,  so  as  to  give  the  dowress  seizin  from  the  death  of  her  husband ;  that,  as  the 

Vol.  I.  11 


162  ASSIGNMENT  OF  DOWER,  ETC.  [CHAP.  XII. 

84.  The  widow  is  regarded  as  so  far  holding  under  the  next  owner, 
that,  like  other  tenants,  she  is  estopped  to  set  up  against  him  a  para- 
mount title  purchased  by  her.  Nor  can  a  purchaser  from  her  be  al- 
lowed to  do  it.(l)(a) 

(1)  Kirk  V.  Nichols,  2  J.  J.  Mar.  470. 

assifrnment  of  dower,  which  in  itself  was  bad,  had  been  followed  by  her  entry  and  possession, 
and  by  the  ratifying  acts  of  the  heirs,  it  was  good;  but  tliat  as  the  assignment  and  the  judgment 
for  partition  were  simultaneous,  the  latter  was  not  defeated,  so  as  to  divest  the  heirs  of  the 
momentary  seizin  which  followed  the  judgment  and  supported  the  partition.  Fowler  v. 
Griffin,  3  Sandf  385. 

It  has  been  very  recently  decided  in  New  Tork,  that,  after  assignment  of  dower,  the 
widow's  title  relates  back  to  the  marriage,  if  the  husband  was  then  seized  of  the  land ;  if 
not,  to  the  time  of  his  seizin;  that  the  assignment  defeats  the  seizin  of  the  heir  ab  initio; 
and,  as  she  does  not  hold  under  the  heir,  she  has  no  right  to  become  party  to  an  application 
for  sale  of  the  land  to  pay  debts.  Lawrence  v.  Brown,  1  Seld  394.  If  the  surrogate  order 
a  sale  of  all  the  husband's  estate,  including  that  assigned  for  dower,  the  sale  is  void  a3  to 
this  portion,  though  the  widow  were  notified  to  appear.     lb.  • 

(a)  Having  now  finished  the  important  and  somewhat  extensive  titles  of  curtesy  and 
dovjer,  it  is  worth  while  briefly  to  compare  these  two  estates,  and  designate  their  several 
points  of  similarity  and  of  difference.      See  Co.  Lit.  sees.  2,  52,  53. 

Both  are  life  estates  created  hy  act  of  law,  and  arise  out  of  the  same  relation,  that  of  mar- 
riage. Botli  require  a  present  seizin,  either  in  law  or  in  deed,  in  the  owner  of  the  inherit- 
ance ;  that  is,  a  title  not  subject  to  any  particular  freehold  estate.  In  both,  marriage  alone 
gives  an  incipient  or  initiate  title,  which  the  death  of  the  party  owning  the  inheritance  is 
necessary  to  consummate.  Both  curtesy  and  dower  are  a  continuation  of  tlie  deceased 
party's  estate,  having  tlie  effect  to  interrupt  the  seizin  as  between  ancestor  and  heir,  although 
in  the  former  case  the  estate  is  said  to  be  in  the  post,  and  in  the  latter  by  the  husband.  And 
lastly,  neither  of  these  estates  is  defeated  by  the  ending  of  the  estate  out  of  which  it  springs, 
according  to  the  ov\g'ma\  li7nitation ;  while  both  alike  are  determined  by  forfeiture  under  a 
condition.     Co.  Lit.  30  b,  n.  7. 

In  regard  to  the  points  of  distinction  between  curtesy  and  dower,  each  seems  to  be  in 
some  particulars  the  more  favorably  regarded  by  the  law.  Tenant  by  the  curtesy  does  not 
forfeit  his  estate,  as  a  wife  forfeits  her  dower,  by  elopement  and  adultery.  The  former  may 
immediately  enter  upon  the  land  after  the  death  of  the  wife,  while  the  latter  must  wait  for 
an  assignment  or  judgment  of  law.  Curtesy  embraces  the  vjhole  estate  of  the  wife ;  while 
dower  is  confined  to  one-thi7'd  of  the  husband's  estate. 

On  the  other  hand,  doiver  does  not  require  actual  seizin  on  the  part  of  the  husband,  as 
curtesy  requires  it  in  the  wife.  And  the  wife  shall  have  dower,  but  the  husband  shall  not 
have  curtesy,  without  the  birth  of  issue  ;  provided  that  the  issue,  which  she  might  by  possi- 
bility have  had,  could  inherit  the  estate. 


CHAP.  XIIL] 


JOINTURE. 


163 


CHAPTER    XIIl. 

JOINTURE. 


2.  Definition. 

3.  Orifrin. 

5.  Value. 

6.  Wlien  to  take  efTect. 
8.  Quantity  of  estate. 

11.  Must  be  a  legal  interest. 

12.  Must  be  an  entire  satisfaction. 

13.  And  .so  stated. 
15.  Ante-nuptial. 

1(5.  Provisions  not  strictly  jointures. 

20.  P^quitable  jointure. 

23.  AVho  may  receive  a  jointure. 


24.  A  provision — uot  a  conh-ad. 

25.  Infants. 

26.  Waste. 

27.  Emblements. 

28.  Eviction  or  breach  of  covenant;  and 
tlio  jointre.ss'  lien  upon  lands. 

38.  Favored  in  equity. 

42.  Interest. 

43.  How  barred — by  deed. 
45.  By  elopement,  &c. 

47.  By  devise,  &c. 

58.  Jointure  in  the  United  States. 


1.  The  next  estate  for  life,  and  one  immediately  connected  with  that 
of  doioei\  is  a  jointure. 

2.  A  jointure  is  a  competent  livelihood  of  freehold  for  the  wife,  of 
lands  or  tenements,  &;c.,  to  take  effect  presently  in  possession  or  profit 
after  the  decease  of  the  husband,  for  the  life  of  the  wife  at  least,  if  she 
herself  be  not  the  cause  of  its  determination  or  forfeiture.(l) 

3.  This  estate  originated  with  the  statute  of  uses.  By  the  common 
law,  as  has  been  stated  above,  (ch.  10,  s.  1,)  a  wife's  right  to  dower  at- 
tached immediately  upon  her  marriage,  and  could  be  defeated  only  in 
the  few  modes  which  have  been  mentioned.  No  conveyance  to  the 
wile  during  coverture  would  operate  as  a  substitute  for  her  dower; 
upon  the  maxim,  that  no  right  or  title  to  a  freehold  estate  can  be 
barred  by  a  collateral  satisfaction  ;  neither  was  her  release,  being  made 
during  coverture,  of  any  effect.(a)  To  obviate  this  inconvenience,  it 
became  very  common  to  convey  lands  to  uses,  a  widow  not  being  dow-. 
able  of  a  use ;  and,  when  a  cestui  que  use  married,  the  friends  of  the 
woman,  by  way  of  provision  for  hei',  procured  him  to  take  a  convey- 
ance from  his  feoffees,  and  limit  it  to  himself  and  the  wife  for  their 
lives  in  joint  tenancy  ov  jointure.  When  the  statute  of  uses  transferred 
the  legal  estate  to  the  ccatui,  the  widow  became  dowable,  even  though 
the  above-named  provision  had  been  made  for  her.  Hence  this  statute 
provided,  that  no   woman  thus  provided  for  should  claim  dower  in 

(1)  Co.  Lit.  36  b  ;  Vance  v.  Vance,  8  Shepl.  364;  Me.  Rev.  St.  392. 


(a)  In  Alabama,  it  is  held  that  an  ante-nuptial  agreement  is  no  bar  to  dower,  though 
made  expressly  in  lieu  thereof;  but  that  such  agreement,  if  reasonable,  may  be  enforced 
in  equity.     Gould  v.  Womack,  2  Alab.  (N.  S.)  83.  > 

So  a  conveyance  by  a  husband  to  his  wife  of  a  life  estate  in  certain  property,  which 
passes  a  present  vested  interest,  and  is  not  testamentary  in  its  character,  will  not  bar  her 
dower.  Mitchell  v.  Mitchell,  8  Ala.  414.  Whether  a  release  of  any  claim  to  dower  is 
sufficient  consideration  for  a  marriage  settlement.  See  Lewis  v.  Caertoii,  8  Gratt.  148  ; 
Black  man  v.  Blackman,  16  Ala.  633.     Infra  p.  61. 

A  contract,  made  by  husband  and  wife  and  her  trustee,  during  the  coverture,  by  which, 
in  consideration  of  her  receiving  separately,  and  absolutely  controlling,  her  property,  she 
releases  her  dower  in  the  husband's  lands,  is  invalid,  and  no  bar  to  dower.  Towuscud  v. 
Townsend,  2  SandK  711. 


164 


JOINTURE. 


[CHAP.  XIII. 


the  lands  of  lier  husband  ;  in  other  words,  it  made  a  jointure,  if  con- 
formable to  its  provisions,  a  bar  of  do\ver.(l) 

4.  From  the  definition  of  a  jointure,  given  above,  it  may  be  seen 
that  several  circumstances  are  requisite  to  constitute  this  estate.  These 
are  enumerated  at  length,  and  the  general  principles  of  law  upon  this 
subject  fully  stated,  in   Vernon^s  case,  already  referred  to.(2) 

5.  With  regard  to  the  amount  and  value  of  the  property  limited, 
although  the  statute  seems  to  make  no  express  provision  upon  this 
point,  it  must  be  a  reasonable  and  competent  livelihood,  taking  into 
view  the  circumstances  of  the  parties,  the  amount  of  the  husband's 
estate,  and  the  portion  which  he  received  wiih  the  wife.(3) 

6.  The  jointure  must  take  effect,  in  possession  or  profit,  immediately 
from  the  husband's  death — otherwise,  it  would  be  less  beneficial  than 
dower.  Thus,  if  the  estate  is  limited  to  the  husband  for  life,  remain- 
der to  A  for  life,  remainder  to  the  wife ;  this  is  no  bar  of  dower,  it 
seems,  even  though  A  die  during  the  coverture.(4) 

7.  So,  a  limitation  to  the  husband  in  tail,  remainder  to  the  wife  for 
life,  is  not  a  good  jointure,  though  his  issue  die  before  himself,  and 
therefore  the  widow  come  into  possession  immediately  upon  his 
death.(5) 

8.  The  estate  limited  must  be  at  least  as  great  as  for  the  life  of  the 
wife.  It  is  insufficient,  if  only  in  part  freehold,  and  in  part  an  annuity, 
not  secured  by  real  estate.  The  estates  mentioned  in  the  statute,  are 
to  the  husband  and  wife  and  his  heirs ;  or  to  them  and  the  heirs  of 
their  bodies,  or  one  of  their  bodies ;  or  to  them  for  their  lives  or  her 
life.(6) 

9.  It  is  said  in  an  ancient  treatise,  that  an  estate  to  a  husband  and 
wife  and  their  heirs  is  not  a  good  jointure,  because  not  mentioned  in 
the  act.(7)(a)  But  it  has  been  since  held,  that  these  estates  are  men- 
tioned only  as  examples,  and  do  not  exclude  others  equally  beneficial 
and  consistent  with  the  intention  of  the  act.  Thus,  an  estate  to  a  man 
and  his  wife  and  the  heirs  male  of  their  bodies;  or  to  him  for  life, 
remainder  to  her  for  life  ;  is  a  good  jointure.(8) 

10.  It  was  formerly  held,  that  a  jointure  durante  viduitate  was  good, 
because  it  would  continue  for  life,  unless  terminated  by  the  widow's 
own  act.  But  it  has  been  decided  in  New  York,  that  a  jointure  during 
life  or  widowJtood  is  bad,  unless  accepted. (9) 

11.  A  jointure,  to  be  strictly  legal,  must  be  limited  to  the  wife  her- 
self, not  to  another  person  in  trust  for  her,  even  though  she  assent. 
But  equitable  jointures  are  now  allowed,  and  will  be  noticed  here- 
after.(lO) 


(1)  Vernon's  case,  4  Rep.  1 ;  Lincoln  Col- 
lege case,  3  Rep.  59  b. ;  Co.  Lit.  3G  b.  ; 
Hastings  v.  Dickinson,  7  Mass.  155  ;  Power 
V.  Sheil,  1  Moll.  296. 

(2)  Supra,  3  ;  4  Rep.  1  ;  Mass.  Rev.  St.  410. 

(3)  M'Cartee  r.  Teller,  2  Paige,  511;  4 
Dane,  686. 

(4)  Co.  Lit.  36  b;  4  Rep.  2  a  ;  7  Mass.  155. 

(5)  Wood  V.  Shurley,  Cro.  Jac.  488;  Caru- 


thers  V.  Caruthers,  4  Bro.  Rep.  500 ;  Smith 
V.  Smith,  5  Ves.  192. 

(6)  4  Rep.  3  b,  2  a ;  Dyer,  97  a,  248  a ; 
Co.  Lit.  36  b;  Vance  v.  Vance,  8  Shepl.  364; 
Ind.  Rev.  Sts.  Descent,  sec.  38. 

(7)  Bro.  Abr.  Dower. 

(8)  4  Rep.  3  b,  2  a. 

(9)  Mary  Vernon's  case,  4  Rep.  3 ;  McCar- 
tee  V.  Teller,  2  Paige,  511. 

(10)  Co.  Litt.  36  b. 


(a)  Another  reason  mentioned  is,  that  such  estate  goes  to  the  heirs  generally,  but  the 
statute  was  intended  to  benefit  the  issue.     Dyer,  248  a,  n. 


CHAP.  XIII.] 


JOINTURE. 


165 


12.  A  jointure,  to  be  a  bar  of  dower,  must  be  made  in  satisfaction  of 
the  whole  dower. {i) 

13.  It  must  also  appear  to  have  been  made  to  the  wife  as  a  satisfac- 
tion of  doiver.  Before  the  statute  of  frauds,  this  fact  might  be  averred^ 
that  is,  proved  by  paroh  And  it  has  been  suggested  that, the  law  is 
still  the  same,  as  there  is  nothing  in  that  statute  excUi-diiig  averments. 
But  the  modern  doctrine  seems  to  be  otherwise.(2)  Thus,  where  to  a 
bill  in  equity  for  dower,  the  heir  pleaded  that  the  husband  made  a  bond, 
in  trust,  to  secure  the  wife  a  certain  sum ;  that  it  wiis  intended  in  lieu 
of  dower,  and  that  she  acknowledged  it  to  be  so:  held,  parol  evidence 
of  such  acknowledgment  was  inadmissible.(3) 

14.  It  is  sufficient,  however,  if  the  deed  show  by  strong  implication 
that  the  provision  was  intended  as  a  bar  (;f  dower.  But  equity  requires 
a  very  distinct  manifestation  of  such  intent.(4) 

15.  A  jointure,  to  be  binding  on  the  wife,  must  be  made  before  mar- 
riage.   If  made  after  marriage,  she  may  refuse  it  and  demand  dower.(5) 

16.  A  jointure,  made  conformably  with  all  these  requisitions,  is  in 
general  absolutely  binding  upon  the  wife,  and  prevents  the  claim  of 
dower  from  ever  arising.  Many  provisions  made  by  the  husband  for 
the  wife,  though  not  in  the  form  above  prescribed,  may  operate  as  a  bar 
of  dower,  il  accepted  by  her.(6)  In  this  respect,  a  settlement  made  during 
the  husband's  life  stands  on  the  same  footing  with  a  devise  or  beque-st; 
which,  it  has  been  seen,  if  intended  as  a  substitute  for  dower,  the  widow 
can  receive  only  in  that  way.  Indeed,  a  provision  for  the  wife  by  will 
is  often  in  statutes  and  elsewhere  called  a  jointure,  and  was  originally 
upheld  as  a  bar  of  dower,  as  being  within  theequit}^  and  reason  of  the 
statute  of  uses,  which  establishes  jointures.(7)(a) 

17.  Thus,  if  an  estate  be  settled  upon  the  wife  after  marriage,  and  if, 
after  the  husband's  death,  she  accepts  it,  she  is  barred  of  her  dower.(8) 

18.  So  if  the  estate  limited  is  less  valuable  than  dower — being  bur- 
dened with  a  condition,  or  made  determinable  during  the  life  of  the 
wife;  still,  if  she  accepts  it,  she  shall  not  have  dower.  Thus,  where  an 
estate  was  limited  by  the  husband  to  the  wife  for  life,  upon  condition 
of  her  performing  his  will,  and  after  his  death  she  accepted  and  entered 
upon  the  estate;  held,  inasmuch  as  the  estate  was  for  life,  though 
conditional,  and  the  widow  had  accepted  it,  she  was  barred  of  her 
dower.  (9) 

19.  In  some  cases,  however,  if  the  provision  made  for  the  wife  has 
not  the  legal  requisites  of  a  jointure,  the  widow  may  claim  both  such 
prDvision  and  dower  also.  This  is  of  course  the  case,  where  there  was 
no  intention  to  bar  dower.    Audit  is  said,  that  where  the  estate  limited 

(1)  Co.  Liit.  36  b. 

(2)  1  Cruise,    U9;    Owen,  33;  4  Rep.    3. 

(3)  Tinney  v.  Tinney,  3  Atk.  8  ;  Walker  v. 
Walker,  1  Ves.  54-,  Coucli  v.  Stratlon,  4  Vea. 
jr.  391;   Charles  v.    Andrews,  9  Mod.  152. 

(4)  Ambler  v.  Norton,  4  liar.  A  MuHenry, 
23;  Vizard  v.  Longdalo,  3  Atk.  8;  Lord 
Dorchester  v.  Effingham,  Coop.  323. 


(5)  Co.    Lit.  36  b ;  4  Rep.  3  a;  Vance   v. 
Vance,  8  Shepl.  3G4. 

(6)  1  Cruise,  151;  4  Rep.  2  a;  Mass.  Rev. 
St.  410. 

(7)  Vernon's  ca.sc,  4  Rep.  4  a,  b  ;  4  Dane, 
685. 

(8/  Co.  Lit.  36  b  ;  Walk.  Intro.  325.     See 
Frank  v.  Frank,  3  My.  &  C.  171. 
(9)  Vernon's  case,  4  Rep.  1  ;  Dyer,  317  a. 


(a)  ,A  jointure  is  ordinarily  settled  before  marriage ;  and  a  devise  takes  effect  after  it  is 
eruled  by  death.  Hence,  they  are  held  to  stand  on  substantially  the  same  ground.  4 
Rep.  4  a. 


166 


JOINTURE: 


[CHAP.  XIII. 


is  not  to  commence  immediately  upon  the  husband's  death,  the  widow 
shall  have  such  estate  in  addition  to  her  dower,  although  the  interme- 
diate part}'-  have  died  before  the  husband.(l)(a) 

20.  In  equity^  any  provision  which  a  woman  accepts  before  marriage 
in  satisfaction  of  dower — as,  for  instance,  a  trust  estate,  or  a  mere  per- 
sonal covenant  of  the  husband — may  constitute  a  good  jointure.  Thus, 
a  sum  of  money  secured  by  bond.  So,  a  bond  to  •  the  mother  of  the 
intended  wife,  conditioned  that  the  husband  or  his  heirs  should  settle  a 
certain  sum  jjer  annum  upon  her,  in  satisfaction  of  dower.  So  even  a 
covenant  by  the  husband,  that  his  heirs^  executors  or  administrators  will 
pay  an  annuity  for  life  to  the  wife,  though  it  be  not  charged  upon  lands, 
is  a  good  jointure.  For,  although  the  husband  might  defeat  his  own 
covenant  by  immediately  conveying  away  all  his  property,  this  would 
be  an  eviction,  which  would  let  in  the  wife  to  her  dower.  And 
although  the  husband  was  not  in  terms  bound  himself,  equity  would 
treat  him  as  bound,  and,  upon  a  suit  of  the  wife  by  her  next  friend, 
compel  him  immediately  to  settle  the  annuity.(2)(Z^) 

21.  So,  where  a  man  and  infant  woman,  each  of  whom  owned  lease- 
hold estates,  assigned  them  to  trustees,  in  trust  to  permit  the  husband 
to  receive  the  rents  for  his  life,  and  the  wife  for  her's  after  his  death ; 
held,  a  good  joiuture.(3) 

22.  A  jointure  will  be  good  in  equity,  though  the  estate  limited  does 
not  proceed  immediately  from  the  husband.  Thus  it  may  come  through 
trustees,  or  the  demandant  in  a  common  recovery,  suffered  for  the  pur- 
pose of  a  jointure,  or  the  father  of  the  intended  husband,  by  a  convey- 
ance from  him  to  trustees,  in  pursuance  of  previous  articles.(4:) 

23.  All  persons,  capable  of  being  endowed,  are  also  capable  of  taking 
a  jointure. (5) 

24.  It  has  been  held  in  England,  that  a  jointure  is  ajyrovision,  not  a 
contract.  Although  it  is  undoubtedly  necessary  that  the  woman  should 
have  notice  of  it,  yet  there  is  no  law  requiring  that  she  should  be  a 
party  to  the  deed  by  which  the  jointure  is  created.  Upon  the  same 
principle,  it  was  decided  by  the  twelve  judges,  three  dissenting,  that  an 
infant  woman  is  bound  and  barred  of  her  dower,  by  a  jointure  made  to 
her  before  marriage. (6)(c) 

25.  Inasmuch  as  a  legal  jointure  bars  the  dower  of  an  infant  at  law, 


(1)  4  Rep.  2  a;  Co.  Litt.  36  b. 

(2)  Tinney  v.  Tiniiey,  3  Atk.  8 ;  Estcourt 
V.  Eslcourt,  1  Cox,  20 ;  1  Cruise,  152 ;  Bucks 
V.  Drury,  3  Bro.  Pari.  Ca.  492  ;  Lechmere 
V.  Lechmere,  Cas.  Tern.  Tal.  80 ;  Seys  v. 
Price,  9  Mod.  219;  Caruthers  v.  Caruthers, 
4  Bro.  506  n. ;  Jordan  v.  Savage,  2  Abr.  Eq. 
101  ;  Pottow  V.  Pricker,  5  Eng.  L.  &  Equ. 
443. 


(3)  Williams  v.  Chitty,  3  Ves.  jr.  545. 

(4)  Bridge's  case,  Moore,  118;  Ashton's 
case,  Dyer,  228. 

(5)  1  Cruise,  152. 

(6)  Buckingham  v.  Drury,  3  Bro.  Pari. 
Cas.  492  ;  Caruthers  v.  Caruthers,  4  Bro. 
Rep.  506  n. ;  Jordan  v.  Savage,  2  Ab.  Equ. 
101  ;  Earl  of  Buckingham  v.  Drury,  2  Eden, 
73;  4  Kent,  55  u. 


(a)  Such  is  probably  the  meaning  of  the  language,  "  although  the  wife  attains  to  them, 
and  enters  and  takes  the  profits;  yet  she  shall  have  dower  of  the  residue."     4  Rep.  2  a. 

(h)  Lease  for  life  to  A,  remainder  to  his  executors  for  years.  The  term  vests  in  him,  as 
if  it  had  been  to  A  and  his  executors.     Co.  Litt.  54  b. 

(c)  In  this  case,  however,  tiie  settlement  was  made  by  an  indenture  of  tliree  parts,  be- 
tween the  husband,  the  wife  and  trustees,  executed  in  the  presence  of,  and  witnessed  by, 
her  guardian.  Four  judges  only  delivered  opinions  in  the  affirmative.  In  "Wisconsin,  (Rev. 
Sts.  334-5,)  the  woman  must  be  a  party  to  the  deed ;  if  she  is  a  minor,  her  father  or  guar- 
dian shall  join. 


CHAP.  XIII.]  JOINTURE,  167 

an  equitfiblc  jointure  will  bar  it  in  equity,  rnorc  cspcciall}''  if  assented 
to  by  the  father  or  guardian.  But,  although  in  equity,  as  at  law,  a 
jointure  not  in  itself  valid  may  become  a  bar  of  dower  by  the  accept- 
ance of  the  wife,  yet  in  the  case  of  an  infant  it  is  otherwise ;  for  an 
infant  has  no  capacity  in  law  to  accept.  Hence,  a  jointure,  for  life  or 
widowhood  is  bad.(l) 

26.  In  general,  a.jointress,  like  other  tenants  for  life,  has  no  right  to' 
commit  waste.  But  where  there  is  a  covenant  that  the  lands  settled 
shall  be  of  a  certain  yearly  value,  and  they  prove  otherwise  ;  she  may 
commit  waste  to  make  up  the  deficiency. (2) 

27.  A  jointure  is  not,  like  dower,  a  continuation  of  the  husband's 
estate.  Therefore  a  jointress  is  not  entitled  to  the  crops  sown  at  his 
death.(3) 

28.  Eviction  from  her  jointure  restores  a  woman's  right  to  dower,  either 
entirely,  or  in  proportion  to  the  value  of  the  lands  evicted  ;  whether 
the  eviction  take  place  before  or  after  the  husband's  death,  and  notwith- 
standing an  acceptance  by  the  widow  of  the  remaining  portion  of  the 
lands.(4) 

29.  A  jointure  was  settled  before  marriage.  The  husband  purchases 
other  lands,  aliens  them  and  dies.  The  widow  is  evicted  from  her 
jointure.  Held,  she  should  have  dower  in  these  lands,  though  the 
husband  owned  them  only  while  the  jointure  remained  good,  and  while 
therefore  her  dower  was  barred. (5) 

30.  Upon  the  same  principle,  if  a  jointure  is  covenanted,  or  even 
merely  expressed,  by  the  husband  to  be  of  a  certain  annual  value,  and 
proves  of  inferior  value  ;  equity  will  make  up  the  deficiency  from  his 
estate.  And  alt.hough  the  covenant  is  contained  only  in  articles,  not  in 
the  settlement  itself,  the  wndow  will  not  be  at  first  turned  over  to  law 
for  damage*,  but  equity  will  inquire  into  the  amount  of  the  defect,  and 
send  it  to  be  tried  at  law  upon  a  quantum  daranificat.  In  such  case, 
the  widow,  in  England,  stands  as  a  specialty  creditor,  and  has  a  claim 
against  the  other  lands  of  the  husband. (6) 

31.  At  law,  a  mere  covenant  to  settle  even  certain  specific  lands 
gives  no  lien  upon  those  lands.  In  equity,  a  covenant  lo  settle  lands 
generally,  or  lands  of  a  certain  value,  gives  no  lien  upon  the  husband's 
real  estate;  but  the  widow^  stands  as  a  specialty  creditor  for  an  amount 
not  exceeding  her  dower.  But  a  covenant  to  settle  particular  lands 
gives  a  lien  upon  them,  except  as  against  ignorant  purchasers  for  a  con- 
sideration. So,  if  the  covenant  declare  the  settlement  to  be  in  execu- 
tion of  a  power,  equity  will  ascertain  to  what  lands  such  power  is  ap- 
plicable, and  enforce  a  lien  upon  them. (7) 

32.  No  act  or  neglect  on  the  part  of  the  wife,  during  coverture,  will 
bind  her,  in  case  of  eviction  from  the  jointure,  or  of  its  proving  of  in- 
ferior value  to  that  agreed  upon.  It  is  a  maxim  in  law,  that  the  laches 
of  a  feme  covert  shall  not  be  imputed  to  her.  Thus,  a  husband,  after 
marriage,  gives  a  voluntary  bond  to  settle  a  jointure,  and  afterwards 
makes  such  settlement,  whereupon  the  bond  is  given  up.     After  the 


(1)  McOartee  v.  Teller,  2  Paige,  511 ;  Cor- 
bit  V.  Gorbit,  1  Sim.  &  Sui.  G12. 

(2)  Bassett  v.  Bassett,  Fiucli,  189;   1  Abr. 
Eq.  221. 

(3)  Fisher  v.  Forbes,  9  Vin.  373. 

(4)  Gervoye's  ease,  Moore,  71V;  Hastings 
V.  Dickinson,  7  Mass.  153 ;  Ainblor  v.  Wes- 


ton, 4  Hen.  &  Mun.  23  ;  4  Kent,  55  n. 

(5)  MausEeld's  case,  Co.  Lit.  33  a,  n.  8. 

(6)  Glegg  V.  Glegg,  2  Ab.  Eq.  27  ;  Prob- 
ert  V.  Morgan,  1  Atk.  440;  Spcake  v.  Speake, 
iVer.  218;  Parkers.  Harvey,  2  Abr.  Eq. 
241 ;   1  Cruise,  110. 

(7)  2  Story  on  Eq.  496,  and  n. 


168 


JOINTURE. 


[CHAP.  XIII. 


husband's  death,  the  widow  was  evicted.  Held,  in  equity,  that  the 
giving  up  of  the  bond  did  not  bind  her,  she  being  a/eme  covert;  and  that 
the  bond  should  be  satisfied  from  the  personal  estate,  unless  she  re- 
covered her  dower.(l) 

33.  A  husband,  having  a  power  to  settle  a  jointure,  not  exceeding 
100/.  per  annum,  after  marriage,  appointed  lands  to  trustees  for  this 
purpose,  covenanting  that  they  were  worth  100/.;  and,  if  they  were  not, 
that,  upon  demand  made  during  his  life,  he  would  make  up  the  defi- 
ciency. The  husband  lived  several  yciirs,  and  no  complaint  was  made 
respecting  the  jointure.  After  his  death,  the  widow  brings  a  bill  in 
equit}^,  to  have  a  deficiency  made  up  from  the  personal  estate.  De- 
creed, in  favor  of  the  widow. (2) 

84.  If  the  wife  had  a  title  before  marriage  to  the  lands  assigned  her 
for  a  jointure,  it  seems,  upon  entering  on  them,  she  is  remitted  to  her 
former  title,  and  shall  recover  dower  as  if  evicted. (3) 

45.  A  widow  shall  be  endowed  for  life  only,  though  evicted  from  a 
jointure  in  fee(4) 

36.  In  equity,  a  jointress  is  regarded  as  a  purchaser,  marriage  being 
held  a  valuable  consideration.  Hence,  a  court  of  equity  will  always 
interpose  for  her  protection;  and,  where  there  is  a  mere  agreement  for 
a  jointure,  compel  an  execution  of  it,  which  shall  relate  to  the  time  when 
it  ought  to  have  been  made.(5) 

37.  If  the  agreement  is, to  settle  a  jointure  before  marriage,  a  mar- 
riage without  such  settlement  is  no  waiver  or  release  of  the  contract ; 
but  the  wife,  after  her  husband's  death,  may  enforce  it  in  equit37.(6) 

38.  Equity  will  not  relieve  against  a  jointure,  although  it  operates 
very  unequally  in  flivor  of  the  wife. 

39.  As  part  of  a  marriage  treaty  between  A  and  the  father  of  B, 
A  was  to  have  a  marriage  portion  of  £5,000,  and  settle  £500  per 
annum  upon  B.  The  father  demanded  that  the  fee  of  the  jointure 
should  be  settled  upon  her,  in  case  A  died  without  issue,  which  A 
refused.  A  afterwards  resumed  the  negotiation,  received  articles  for 
the  £5,000,  settled  the  £500  per  annum,  and  mortgaged  the  reversion 
of  the  jointure,  with  his  other  lands,  for  the  payment  of  £5,000  to  his 
widow,  if  he  should  die  without  issue.  In  a  fortnight  afterwards  A 
died,  having  been  feeble  and  sickly  at  the  time,  and  having  also  de- 
clared on  his  death-bed,  and  in  presence  of  the  wife,  without  contra- 
diction, that  no  such  agreement  had  been  made.  The  wife  brings  a  bill 
for  foreclosure  of  the  mortgage  against  the  heirs  of  A,  and  they  bring 
a  bill  for  relief,  alleging  fraud.  Held,  that  marriage  being  a  valuable 
consideration,  mere,  unreasonableness  in  the  provisions  of  a  settlement, 
without  fraud,  was  insufficient  to  set  it  aside ;  and  that  the  fairness  of 
the  transaction  was  to  be  determined  by  the  state  of  facts  at  the  time, 
not  what  took  place  afterwards.  The  defendants  were  decreed  to  pay 
the  £5,000,  without  interest.(7) 

40.  A  jointress,  being  regarded  as  a  purchaser,  will  be  relieved  in 
equity  against  a  prior  voluntary  conveyance.(8) 


(1)  Beard  v.  Nutthall,  1  Vern.  427. 

(2)  Fothergill  v.  Fothergill.l  Abr.  Eq.  222. 

(3)  Wood  V.  Shurley,  Cro.  Jac,  490. 

(4)  4  Dane,  685. 

(5)  1  Cruise,  156;  Sydney  v.  Sydney,  3  P. 
Wms.  276;  Buchanau  v.  Buchanan,  1  Ball 


&  Beat.  206. 

(6)  Hayner  V.  Hayner,  1  Cruise,  218. 

(7)  Whitfield  v.  Paylor,  Show.  Pari.  Ca. 
20;  (Wickerley  v.  Wickerley,  2  P.  Wms. 
619.) 

(8)  I  Cruise,  157. 


CHAP.  XIII.] 


JOINTURE. 


169 


41.  Where  an  heir  or  other  person  seeks  in  equity  to  avoid  a  jointure, 
for  want  of  title  in  the  husband  to  make  it,  and  pi  ays  a  discovery  of 
title-deeds;  in  order  to  obtain  such  discovery,  his  bill  must  submit  to 
conlirin  the  jointure,  even  though  made  alter  marriage.  And  the 
widow  will  not  be  compelled  to  produce  her  own  deed,  unless  the 
party  not  only  offer  to  confirm,  but  actually  confiriji^  the  jointure. 
Upon  such  confirmation,  the  court  will  order  her  to  deliver  up  even 
leases,  if  expired,  or  attendant  on  the  inheritance,  althougli  she  may 
have  claims  for  back  rents,  and  upon  the  covenants.(l) 

42.  Interest  is  not  allowed  upon  the  arrears  of  a  jointure,  except 
under  special  circumstances  ;  as  where  the  widow  has  been  compelled 
to  borrow  money  on  interest.  And  even  this  ground  is  doubted. 
A  contract  is  said  to  be  the  only  proper  reason. (2) 

43.  In  general,  a  jointure,  like  dower,  is  not  liable  to  be  barred  or 
aff'ected  by  any  act  of  the  husband  alone.  But  it  may  undoubtedly 
be  barred  by  a  joint  deed  of  husband  and  wife. (3) 

44.  It  seems,  if  the  jointure  were  settled  before  marriage,  it  being 
an  absolute  satisfaction  of  the  right  of  dower,  this  right  will  not  be 
revived  by  a  conveyance  of  the  husband  and  wife,  releasing  her  j(jint- 
ure.  But  if  made  after  marriage,  inasmuch  as  the  widow  might  waive 
it  and  claim  dower,  such  release  will  have  the  effect  to  restore  the 
wife's  right  of  dower.(4) 

45.  In  England,  a  wife  does  not  lose  her  jointure,  like  dower,  by 
elopement  and  adultery.  And,  in  equity,  this  is  no  defence  to  a  bill 
brought  by  the  wife  herself,  or  by  trustees,  for  a  specific  performance 
of  marriage  articles  for  a  jointure  ;  more  especially  where  specific  lands 
are  to  be  settled,  and  where  both  the  averment  and  proof  are  not  of 
positive  acts  of  adultery,  but  of  mere  elopement  with  another  man. (5) 

46.  In  New  York,  Missouri,  and  New  Jersey,  a  jointure  ;  and  in 
New  York  and  Arkansas,  every  other  pecuniary  provision  in  bar  of 
dower,  is  barred  by  elopement  and  adultery.  In  Delaware,  a  jointure 
is  barred  by  divorce  for  adultery  of  the  wife,  or  by  adultery  and  elope- 
ment or  separation  without  the  husband's  fault,  unless  he  be  reconciled 
to  her.(6) 

47.  With  regard  to  the  effect  of  a  provision  by  will,  for  the  benefit 
of  the  wife,  it  has  been  held  in  England,  that  such  provision,  being  no 
bar  of  dower,  is  upon  the  same  principle  no  bar  of  a  jointure,  which  is 
to  be  considered  as  coming  in  the  place  of,  and  having  the  same  privi- 
leges with  dower.  x\nd  where  there  is  a  covenant  that  the  jointure 
lands  shall  be  of  a  certain  value,  and  they  prove  deficient,  the  devise 
or  bequest  shall  not  be  taken  as  a  satisfaction  qf  such  deficiency,  or 
performance  of  a  covenant,  but  as  a  bounty,  and  the  defect  shall  be 
made  up  as  if  no  devise  had  been  made.  It  is  said,  this  is  not  like  the 
case  where  a  husband  covenants  to  settle  lands,  and  permits  them  to 
descend  ;  which  is  held  an  implied  performance.  But  it  is  a  question 
of  the  construction  of  a  will,  and  the  intent  of  a  testator.    The  husband 


(1)  Towers  v.  Davys,  1  Vern.  479;  Leacli 

V.  Trollop,   2  Yes.   G62  ;    Lomax  v.  , 

Sel.  Cas.  in  Clia.  4;   1  Storj-  on  Kqu.  78. 

(2)  Hubert  v.  Parsons,  2  Yes.  2G1  ;  Tew 
V.  Winterton,  1  Yes.  jun.  451. 

(3)  1  Crui.se,  160. 

(4)  Co.  Lit.  37  a;  Djcr,  358  b. 


(5)  Blount  V.  Winter,  3  P.  Wnis.  277  ; 
%dney  v.  Sydney,  3  lb.  269 ;  Buchanan  v. 
Buchanan,  1  Ball  &  B.  206. 

(6)  1  N.  Y.  Rev.  Sc.  742  ;  1  N.  J.  Rev.  C. 
400;  Misso.  St.  229;  Dela.  St.  1832,  149; 
1829,  165  ;  Rev.  Sts.  291. 


170 


JOINTURE. 


[CHAP.  XIH 


having  contracted  to  make  the  jointure  of  a  certain  value,  this  is  what 
the  widow  has  a  right  to,  as  a  purchaser ;  it  is  her  own  estate,  or  a 
debt  from  her  husband  to  her.  Nor  does  the  largeness  of  the  settle- 
ment at  all  vary  her  rights.(l) 

48.  By  marriage  articles  between  an  intended  husband  and  the 
father  of  his  intended  wife,  the  father  covenanted  to  pay  a  certain  sum 
of  money,  and  to  settle  lands  to  certain  uses,  if  the  husband  would  set- 
tle lands  upon  his  wife  to  the  value  of  £500  per  annum,  as  a  jointure 
in  lieu  of  dower.  The  father  fulfilled  his  covenants,  and  the  husband 
settled  lands,  the  annual  value  of  which  exceeded  the  amount  agreed 
upon.  But  afterwards,  finding  some  defect  in  the  title  of  a  part  of  the 
lands,  and  being  advised  that  upon  his  dying  without  issue,  the  jointure 
might  become  void  in  consequence  of  an  entailment  for  the  benefit  of 
his  sisters,  he  suffered  a  fine  of  the  jointure  lands,  and  also,  in  pur- 
suance of  a  power  from  his  father,  appointed  other  lands  to  his  wife, 
declaring  the  same  to  be  in  recompense  of  all  deficiencies  in  her  jointure. 
The  husband  afterwards  made  his  will,  by  which'  he  gave  the  wife  a 
large  pecuniarj^  legacy,  all  his  personal  estate,  several  houses  and  lands, 
and  made  her  a  residuary  legatee;  all  which  provisions  were  more  than 
double  the  value  of  the  jointure.  Neither  the  wife  nor  her  father  or 
friends  had  notice,  during  the  marriage,  of  the  title  of  the  sisters.  The 
husband,  by  the  death  of  his  wife's  parents,  received  a  considerable 
amount  of  propert}^,  and  was  allowed  by  her  to  have  the  benefit  of  her 
estates  derived  from  her  father.  The  will  devised  to  the  sisters  and 
their  issue,  the  reversion  of  all  the  husband's  inheritance  after  the 
widow's  death.  After  the  husband's  death,  his  sisters  claimed  the  lands 
settled  as  a  jointure,  and  by  legal  title  evicted  the  widow  therefrom. 
The  widow  files  a  bill  in  Chancery,  to  have  her  jointure  confirmed  or 
dower  assigned  ;  and  the  defendants  file  a  cross-bill  for  discovery. 
Held,  by  Lord  Harcourt,  that  the  defendants  should  convey  to  the 
widow  lands  of  her  husband  to  the  value  of  £500  per  annum  for  life, 
which  she  should  hold  in  addition  to  all  the  other  provisions  above- 
mentioned  for  her  benefit.  On  appeal  to  the  House  of  Lords,  the  decree 
was  affirmed. (2) 

49.  A  man,  upon  his  marriage,  gave  bond  to  a  trustee,  to  settle  upon 
the  wife,  within  four  months,  freehold  lands  worth  £100  per  annum. 
After  marriage,  he  devises  freehold  and  copyhold  lands,  of  the  value 
of  £88,  to  his  loviiifj  wife  and  her  heirs ;  and  dies  within  the  four  months. 
Held,  this  devise  was  no  satisfaction  of  the  jointure,  because  land  can- 
not be  a  satisfaction  of  money,  nor  the  converse;  nor  copyhold  a  satis- 
faction of  freehold.  That  the  phrase,  his  loving  wife,  imported  a  bounty, 
and  that  the  wife  should  take  the  devise  in  addition  to  the  £100,  if 
there  were  assets  for  payment  of  bond  debts,  and  those  charged  by  will 
upon  the  land. (8) 

50.  More  especially  is  this  construction  to  be  adopted,  where  the 
husband  by  his  will  expressly  ratifies  and  confirms  the  marriage  arti- 
cles, although  in  the  same  sentence  he  gives  to  his  wife  lands  for 
life.(4) 


(1)  Probert  v.  Morgan,  1  Atk.  440 ;  1 
Cruise,  169  a;  Prime  v.  Stebbing,  2  Yes. 
409. 


(2)  Grove  v.  Hooka,  4  Bro.  Pari.  Ca.  563 ; 
5  Vin.  Abr.  293. 

(3)  Eastwood  v.  Vinke,  2  P.  "Wms.  613. 

(4)  Prime  v.  Stabbing,  2  Ves.  409. 


CHAP.  XIII.] 


JOINTURE. 


171 


51.  And  the  same  rule  prcvail.s,  though  the  specific  lands  charged 
with  the  jointure  arc  expressly  devised  away,  by  the  will  which  makes 
provision  for  the  wife. 

52.  A  man,  in  consideration  of  marriage  and  a  large  marriage  por- 
tion, covenanted  to  convey  lands  in  C  to  trustees,  to  raise  an  annuity 
for  ills  wife,  as  a  jointure  and  in  lieu  of  dower.  The  conveyance  was 
not  made ;  but  the  husband,  having  sold  large  estates  of  greater  value 
than  the  lands  in  C,  and  contracted  for  the  purchase  of  others,  made 
his  will,  devising  to  his  wife  a  leasehold  house  in  London  with  all  the 
furniture,  and  also  the  estates  contracted  lor,  or  the  purchase-money  of 
those  sold,  and  devising  the  lands  in  C  to  trustees  for  the  benefit  of  his 
heir,  subject  to  an  annuity.  The  widow,  alter  entering  upon  the  estates 
devised  to  her,  brought  a  bill  in  equity  against  the  heir  for  a  specific 
execution  of  the  marriage  articles.  Held,  both  in  Chancery  and  in  the 
House  of  Lords,  that  the  devise  was  no  bar  of  the  jointure.(i) 

53.  If  a  devise  is  made  expressly  as  a  substitute  or  satisfaction  for 
the  jointure  of  the  wile,  she  cannot  hold  both,  but  must  make  her  elec- 
tion between  them. 

54.  A  man  agreed  to'purchase  lands  to  the  amount  of  £10,000,  and 
settle  them  upon  his  intended  wife  for  her  jointure.  After  the  mar- 
riage, his  father  gave  him  an  estate  for  life,  with  a  power  to  grant  a 
rent-charge  of  £400  per  annum  to  an}'-  woman  whom  he  should  marry, 
for  her  jointure.  The  husband  accordingly  granted  such  rent-charge, 
in  satisfaction  of  a  part  of  the  jointure;  afterwards  conveyed  a  lease- 
hold of  £200  per  annum,  in  trust  for  the  wife;  and  then,  by  will,  con- 
firmed the  rent-charge,  and  the  conveyance  of  the  leasehold,  by  way  of 
addition,  and  in  full  compensation  of  the  jointure.  Held,  these  pro- 
visions were  a  satisfaction  of  the  jointure,  and  the  widow  must  elect 
between  them. (2) 

55.  It  is  suggested  that,  in  analogy  to  the  law  concerning  dower,  a 
devise  shall  be  held  a  satisfaction  of  the  wife's  jointure,  if  the  will  raises 
a  strong  implication  that  such  was  the  testator's  intention.  The  follow- 
ing case  is  cited  to  this  point.(3) 

56.  The  father  of  a  husband  settled  lands  upon  the  w^ife,  and  cove- 
nanted that  they  were  worth  £1,000  per  annum.  After  the  father's 
death,  the  husband,  his  heir,  devised  to  his  wife  other  lands  worth 
£500,  a  legacy  of  £1,000,  and  a  part  of  his  household  goods.  Subse- 
quently, being  minded  to  make  some  furtlun-  provision  for  her,  he  re- 
voked the  uses  of  a  portion  of  his  estates,  and  limited  them  to  trustees  to 
raise  £10,000  lor  her.  By  a  codicil,  he  devised  to  her  an  annuity  of  £500 
for  life.  The  widow  brings  a  bill  in  equity  to  have  a  deficiency  in  her 
jointure  made  up.  Held,  the  other  provisions  must  be  taken  as  a  sat- 
isfaction of  such  deficiency. (4) 

57.  Upon  this  case,  however,  it  is  remarked,  that  it  w\as  piior  to 
Prime  v.  Stthhing\a)  and  also  that  it  was  finally  decided  upon  the 
ground,  that  the  husband  was  a  very  weak  man,  and  under  the  influence 
of  his  wife,  and,  at  the  execution  of  the  codicil,  actually  insane. 


(1)  Broupliton  v.  Errington,  7  Bro.  Pari  Ca. 
461. 

(2)  Grandison  v.  Pitt,  2  Ab.  Eq.  392. 


(3)  1  Cruise,  I7l. 

(4)  Mouiitague  v.  Maxwell,  -1  Bro.  Pari.  Ca. 
598;  2  Ab.  Eq.  421. 


(o)  Supra,  sec.  50. 


172 


JOINTURE. 


[CHAP.  XIII. 


58.  In  the  United  States,  no  very  considerable  departures  have 
taken  place  from  the  English  law  of  jointure;  except  in  a  few  of  the 
States.  Universally,  a  jointure  accepted  will  operate  as  a  bar  of  dower; 
and,  in  many  of  the  States,  the  statutes  providing  for  the  right  of 
dower,  in  the  way  of  qualification  or  exception,  expressly  disallow  it 
in  cases  where  the  widow  has  received  a  jointure.  Vermont  seems  to 
be  the  only  State  where  a  woman  of  full  age,  "endowed  by  way  of 
jointure,"  before  marriage,  could  ever  waive  her  jointure  and  claim 
dower.  And  now,  by  the  Revised  Statutes  of  that  State,  a  jointure  or 
pecuniary  provision,  made  by  the  husband  or  any  other  person,  before 
marriage,  or,  with  the  wife's  consent,  after  marriage,  to  take  effect  after 
the  husband's  death  and  in  lieu  of  dower;  is  a  bar  thereof  So  any 
devise,  &c.,  which  the  Probate  Court  determines  to  have  been  so  in- 
tended. So  her  half  of  the  estate,  where  there  are  no  children  or  their 
representatives.  And  the  widow  cannot  elect  between  an  ante-nuptial 
provision  and  her  dower,  where  she  was  not  the  first  wife,  and  there 
are  no  issue,  and  she  receives  a  comfortable  support,  if  the  court  order 
otherwise.  In  Indiana,  where  both  curtesy  and  dower  are  expressly 
abolished,  a  jointure  will  bar  the  wife's  share  of  her  husband's  estate; 
and  a  similar  provision  for  him  will  bar  his  share  of  her  estate. (1) 

59.  Mr.  Dane  remarks,  that  the  colony  law  of  Massachusetts  of  164:4 
supposed  the  widow  might  be  barred  of  her  dower  by  a  jointure.(2) 

60.  In  the  same  State,  a  jointure  which  would  be  good  in  equity 
has  been  held  insufficient  to  bar  dower. 

61.  By  marriage  settlement,  a  husband  covenanted  that  the  wife 
should  have  an  annuity  from  his  estate  after  his  death,  and,  in  con- 
sideration thereof,  she  covenanted  not  to  claim  dower.  The  husband 
died  insolvent.  Held,  the  covenant  for  an  annuity  could  not  operate 
as  a  jointure ;  nor  the  covenant  of  the  wife  as  a  release  of  her  dower, 
or  a  valid  contract :  the  claim  of  dower  at  the  time  of  the  covenant  not 
having  accrued,  and  the  consideration  failing  by  the  husband's  insol- 
vency.(3)     Nor  could  it  operate  by  way  of  estoppel.{'^) 

62.  So,  where  a  man  and  woman,  before  marriage,  entered  into 
mutual  covenants  through  a  trustee,  in  the  nature  of  a  jointure;  the 
former  covenanting  for  an  annuity,  and  the  latter  agreeing  to  relinquish 
all  title  to  dower,  and  also  that  her  covenant  might  be  pleaded  in  bar 
to  any  claim  of  dower,  with  a  saving  of  her  right  to  the  annuity  :  held, 
the  covenants  were  not  extinguished  by  the  marriage,  as  they  could 
not  by  possibility  be  enforced  or  performed  during  the  marriage;  but 
that  a  failure  to  pa}^  the  annuity  would  restore  the  wife's  right  to 
dower  in  full,  although  she  might  perhaps  be  liable  upon  the  covenant 
for  the  difference  of  value  between  the  two.(5) 

63.  In  South  Carolina,  the  English  statute  of  uses  on  this  subject 
has  been  almost  in  terms  re-enacted.  In  Ohio,  it  is  said  the  provision 
must  be  for  the  life  of  the  wife.(6) 


(1)  Anth.  Shep.  21;  Verm.  Rev.  St.  289; 
Ind.  Rev.  Sts.  Descent,  sees.  36-7. 

(2)  4  Dane,  685. 

(3)  Hasiings  1^., Dickinson,  7  Mass.  153. 

(4)  15  Mass.  110. 


(5)  Gibson?;. Gibson,  15  Mass.  106;* Vance 
V.  Vance,  8  Sliepl.  364. 

(6)  Anth.  Sliep.  560 ;  Walk.  Intr.  325 ;  2 
Const.  S.  G.  747.  See  Green  v.  Green,  7 
Por.  19. 


*  This  case  is  said  to  be  not  distino;uishable  from  Hastings  v.  Dickinson,  (supra,  n.  3.) 
But  some  of  the  remarks  of  Wilde,  J.,  would  seem  to  imply  that  such  a  covenant,  if  per- 
formed, might  bar  dower. 


CHAP.  XIIL]  JOTNTURK.  173 

6-1.  In  Massachusetts,(a)  Maine,  jMicliigan,  Arkansas,  Wisconsin  and 
New  York,  a  woman's  assent  to  hei-  jointure,  or  any  ])ecuniary  i)rovi- 
sion  in  lieu  thereof,  must  be  expressed,  il'  she  be  of"  lull  age,  by  her 
becoming  a  party  to  the  conveyance  by  which  it  is  settled,  or,  if  she  is 
an  infant,  by  her  joining  with  her  father  or  guardian  in  such  conve}'- 
ance.  Like  provisions  are  made  in  Virginia.  In  Souilr  Carolina,  by 
an  old  act,  if  a  jointure  be  made  after  marriage,  unless  by  act  of  Parlia- 
ment, the  wife  may  refuse  it  and  demand  do\ver.(l) 

Go.  In  Maine  and  Massachusctts,(2)  if  a  jointure  is  settled  before 
marriage  without  the  wife's  assent,  or  after  mari'iage  with  her  assent, 
she  is  allowed  six  months  after  notice  of  the  husband's  death,  to 
elect(i)  between  the  jointure  and  her  dower.  In  Virginia,  she  is  allowed 
nine  months ;  in  Vermont,  sixty  days;  in  New  York,  Indiana,  Arkan- 
sas and  Michigan,  one  year.  In  Missouri,  if  a  jointure  be  settled  upon 
an  infant,  or  after  marriage,  the  wife  may  elect.(3) 

66.  In  Missouri, (4)  a  jointure  may  be  created  by  an  agreement  with 
the  husband,  or  a  third  person,  prior  to  and  in  contemplation  ol'  mar- 
riage, for  real  or  personal  estate,  to  take  effect  alter  the  hns^'and's 
death  by  way  of  jointure,  and  expressed  to  be  in  bar  of  dower  ;  or  by 
a  conveyance  to  the  husband  and  wife,  or  a  third  person,  and  their 
heirs,  to  the  use  of  them  both  or  of  her  alone,  as  a  jointure.  So,  in 
New  York,  a  jointure  may  be  limited  in  triisL{5) 

67.  In  Delaware,  dower  will  be  barred  by  any  estate  in  or  charge 
on  lands,  prior  to  and  in  contemplation  of  marriage,  for  life,  to  take 
effect  at  or  before  the  husband's  death,  in  lieu  of  dower ;  provided  the 
wife  be  of  age.     In  Khode  Island, (c)  by  a  jointure  by  deed  or  tvill,  for 


(1)  Mass.  Kov.  St.  410;  1  N.  Y.  Rev.  St. 
741  ;  Anth.  Sliep.  562;  Mich.  Rev.  St.  264; 
Ark  Rev.  St.  337-8  ;  Wise.  Rev.  Sis.  334-5  ; 
Vir.  Code,  474. 

(2)  Mass.  Rev.  St.  410;  Me.  lb.  392. 


(3)  1  N.  Y.  Rev.  St.  742;  Misso.  St.  229; 
Mich.  Rev.  St.  265  ;  Ind.  lb.  Descmt,  sec.  40. 

(4)  Missd.  St.  229. 

(5)  1  N.  Y.  Rev.  St.  741. 


{n)  Previous  to  the  marriape  of  A  with  B,  an  indenture  of  three  parts,  sealed  by  the 
parties,  was  made  by  and  between  A,  B  and  C.  A  covenanted  and  agreed  with  C,  that  in 
the  event  of  tiie  marriage  taking  place,  and  his  wife  surviving  him,  he  would,  "  by  liis  last 
will  or  otherwise,"  make  a  certain  provision  for  her,  by  the  payment  of  a  gross  sum  to  C, 
and  by  payment  or  giving  security  lor  the  payment  to  him  of  a  further  sum  yearly  during 
the  widowhood  of  the  wife,  for  her  use,  and  to  be  paid  to  her  by  C,  instead  and  in  satisfac- 
tion of  dower  in  the  real,  and  of  any  distributive  share  of  the  personal  estate  of  A.  C  cove- 
nanted and  agreed  with  A  thiit  he  would  accept  the  trust,  and  receive  and  pay  over  the 
money,  lor  tiie  use  and  benefit  of  B ;  and  the  latter  covenanted  and  agreed  with  A  and  C; 
that  ill  case  tiie  marriage  took  place,  and  she  should  survive  A,  and  the  money  above  men- 
tioned should  be  provided  to  be  paid  and  actually  paid,  and  the  annuity  well  arid  sufliciently 
secured  and  provided  to  be  paid,  as  .stipulated,  tiie  same  should  be  in  "full  satisfiiction  of  her 
dower  in  the  estate  of  A,  and  should  bar  her  from  claiming  the  same,  if  she  should  survive 
him,  and  also  bar  any  claim  on  her  part  of  any  share  in  his  personal  estate,  unless  given  her 
by  his  will.  The  marriage  took  place,  and  A  died,  leaving  a  will,  in  which  no  reference 
was  made  to  the  indenture,  but  which  contained  a  general  direction  for  the  payment  of  the 
testator's  debts  and  the  performance  of  his  obligations.  The  executor  of  A,  within  the  time 
stipulated,  made  the  payments  and  gave  the  security  therein  specified  to  C,  for  the  benefifc 
of  the  widow,  who  refused  to  receive  the  same,  but  made  a  demand  of  dower,  and  brought 
her  action  therefor.  Held,  by  the  indenture,  a  pecuniary  provision  was  made  for  the  beneflt 
of  the  demandant,  in  lieu  of  dower,  and  assented  to  by  iier,  within  the  provisions  of  the 
Rev.  Sts.  ch.  60,  sees.  8,  9,  by  which  the  demandant  was  barred  of  her  dower.  Vincent  v. 
Spooner,  2  Ciish.  467. 

{b)  So,  in  Wisconsin,  she  may  elect.     Wise.  Rev.  Sts.  335. 

(c)  A  husband,  by  will,  made  certain  provisions  for  his  wife,  declaring  them  to  be  in 
"lieu  of  her  dower  or  other  interest  in  my  estate,"  and,  after  making  the  will,  acquired  other 


174 


JOINTURE. 


[CHAP.  XIII. 


life  or  in  fee,  in  lieu  of  dower,  to  take  effect  in  possession  on  the  bus- 
band's  death,  and  forfeitable  only  like  dower.  If  made  after  marriage, 
or  to  an  infant,  she  may  waive  it.(l)  In  Virginia  and  Kentucky, (2) 
the  law  is  substantially  the  same;  except  that  the  jointure  may  be 
either  expressly  or  by  averment  in  lieu  of  dower.  In  Ohio,  an  infant 
jointress  may  waive  her  jointure.(3)  In  Tennessee,  a  post-nuptial 
settlement,  made  in  lieu  of  maintenance,  dower  and  distribution,  is 
voidable  at  the  election  of  the  wife ;  yet,  if  she  claims  dower  and  dis- 
tribution after  the  death  of  her  husband,  she  must  renounce  the  benefits 
of  the  deed. (4) 

68.  In  Missouri,  Michigan,  Wisconsin,  Indiana,  Virginia,  South  Caro- 
lina, Delaware,  Massachusetts,  Maine,  Connecticut  and  Ohio,(5)  eviction 
from  a  jointure  or  any  part  thereof  restores  the  right  to  dower,  wholly 
or  pro  tantD.  It  is  remarked,  that  this  provision  is  omitted  in  the  Re- 
vised Statutes  of  New  York.  But,  in  the  absence  of  any  statutory 
provision,  the  English  rule  undoubtedly  prevails.     (See  supra,  s.  28.) 

69.  In  Missouri,  Rhode  Island,  Virginia  and  Keutucky,(6)  if  through 
any  informalitj^  in  the  settlement  a  jointure  fails  to  bar  dower,  and  the 
latter  is  claimed,  the  widow  loses  her  jointure. 

69  a.  In  Pennsylvania,  where  a  marriage  contract  was  set  up  in  bar  of 
dower  and  proved,  and  it  also  appeared  that  the  contract  had  been  given 
up  by  the  trustee  under  it  to  the  husband  to  be  cancelled^  and  he  did  des- 
troy it,  but  no  evidence  of  its  contents  as  to  the  terms  or  amount  of  the  set- 
tlement was  brought,  and  it  appeared  that  the  contract  was  made  to  quiet 
the  children  of  the  husband,  who  promised  when  he  had  shown  it  to 
them  to  destroy  it;  held,  as  the  proof  of  the  contents  of  the  contract 
was  not  clear,  and  as  it  had  been  cancelled  by  the  husband  according 
to  his  original  intention,  though  it  was  kept  some  time  before  it  was 
actually  destroyed,  the  widow's  dower  was  not  barred ;  that  the  destruc- 
tion of  the  contract  was  binding  on  the  husband,  and,  if  ratified  by  the 
wife  by  her  acts  after  his  death,  was  binding  on  her.(7) 

70.  In  Connecticut,(8)  the  rules  of  the  English  law  relating  to  joint- 
ures have  probabl}^  been  farther  relaxed  than  in  any  other  State. 
There,  a  jointure  may  consist  of  personal  estate ;  and  any  provision 
accepted  before  marriage  in  lieu  of  dower  will  be  a  good  equitable 
jointure. («) 

71.  It  was  agreed  between  husband  and  wife,  that  his  executors 
should  pay  her  $100  in  lieu  of  dower  from  his  estate,  which  was  worth 


(1)  Dela.  St.  1829,  165;  Dela.  Rev.  Sts. 
290;    R.  I.  L.  191. 

(2)  1  Yir.  Rev.  cm  ;  1  Ky.  Rev.  L. 
515-6. 

(3)  Walk.  Intr.  325. 

(4)  Parham  v.  Parliam,  6  Humph.  287. 

(5)  1  Brev.  Dig  268  ;  Walk.  Intr.  325;  Mis- 
80U.  Sts.  229;  1  Virg.R.C.  171 ;  4  Kent,  55  n.; 
Dela.   St.    1829,    165;  Mass.   Rev.   St.  411; 


4  Hen.  &  M.  23  ;  Maine  Rev.  St.  393  ;  Conn- 
St.  190;  Dela.  Rev.  Sts.  290;  Wise.  lb.  335; 
Vir.  Code,  474 ;  lud.  Rev.  Sis.,  Descent, 
sec.  42. 

(6)  Misso.  St.  229;   1  Vir.  R.  C.    171;   1 
Ky.  Rev.  L.  576;  R.  I.  L.  191. 

(7)  Gangwere,  2  Harris,  417. 

(8)  Dut.  Dig.  53. 


real  estate.  The  widow  having  elected  to  accept  the  provisions  of  tlie  will ;  held,  she  was 
barred  of  her  dower  in  the  after-acquired  estates,  and  that  a  letter  of  the  te.stator,  en- 
closed with  his  will,  was  inadmissible  to  show  a  contrary  intent.  Chapin  v.  Hill,  1  Rhode 
Island,  446. 

(a)  By  Statute,  a  jointure  made  before  marriage  must  be  expressed  as  made  in  lieu  of 
dower.     Conn.  St  189. 


CHAP.  XIV.] 


KSTATE  FOR  YEARS. 


175 


$6,000.     After  his  deatb,  the  widow  gave  a  receipt  acknowledging  sat- 
isfaction.    Held,  in  Chancery,  a  good  bar  of  dower.(l) 

72.  A  man  and  woman  of  advanced  years,  being  about  to  marry 
each  other,  entered  into  a  written  agreement,  Ijy  wliich  he  promised  not 
to  interfere  with  her  property,  to  supjiort  and  clothe  iier,  and  allow  her 
a  part  of  the  avails  of  her  labor.  The  husband  cxecu]_ed  his  j)art  of 
the  agreement.  After  his  death,  his  executor  delivered  to  the  widow 
the  articles  which  she  had  brought  to  the  house.  In  consideration 
of  the  })remises,  the  widow  by  an  unsealed  instrument  released  the  es- 
tate from  her  claim  of  dower,  but  afterwards  brought  a  suit  at  law  to 
recover  it.  The  heirs  file  a  bill  in  Chancery,  for  an  extinguishment 
and  release.  Ileld,  the  contract  Avas  one  highly  beneficial,  and  the  re- 
lease founded  on  a  valid  consideration  ;  aud  the  bill  was  sustained. (2) 


CHAPTER  XIV. 

EST  AT  K  FOR  YEARS. 


1.  Eslato  less  thau  freehold — estate   for 

j'ears — lease. 
3.  DeEiiitiou — "  term,"  what  is  a. 

5.  How  created,  and  for  what  time. 

6.  Must  be  certain. 

9.  Estate  of  executors  and  trustees. 

12.  An  inferior  estate. 

13.  Tenant  not  seized. 

14.  When  it  commences — entry — interesse 
ttrmini. 

18.  Infuturo. 

22.  How  terminated. 

29.     Is  a  chattel. 


2G-3G.  Limitation  of. 

27.  Husband  and  wife. 
31-5.  Liable  for  debts. 

32.  Freehold  cannot  arise  from. 

33.  Incidents. 

34.  Estovers. 
38.  Merger. 
48.  Surrender. 

54.  Assignment  and  under-lease. 
68.  Assignment  by  reversioner. 

77.  Conveyance  of. 

78.  Forfeiture. 


1.  WxYi^Q  Ue2iiQ(i  o^  Freehold  Estates,  we  proceed  to  consider  Es- 
tates less  than  Freehold. 

2.  Of  these,  the  first  in  order  is  an  estate  for  years.  This,  next  to  a 
fee-.simplc,  is  the  most  common  estate  known  the  law.  It  is  that  to 
which  the  term  /ease  is  chiefly,  though  not  exclusively,  applied. 

3.  An  estate  for  years,  is  a  right  to  or  a  contract  for  the  possession  of 
land,  for  a  certain  specified  time. (8)  Both  the  time  and  the  estate  itself  are 
called  in  law  a  term.  Hence  the  term  may  expire  before  the  time — as, 
for  instance,  by  a,surre7ider.{-i)  Thus,  if  a  conveyance  be  made  to  A  for 
three  years,  and,  after  the  expiration  of  the  said  tei^m,  to  B  for  six,  and 
A  surrender  or  forfeit  his  term  after  one  year  ;  B's  estate  takes  effect 
immediately.  Otherwise,  if  the  language  had  been,  "  after  the  expira- 
ration  of  the  said  time,  or  the  said  three  years.^'     {Infra,  ch.  15.) 

4.  Lease  for  years,  if  the  lessee  live  so  long,  remainder  to  A  for  the 
residue  oHhe  term.  A  shall  hold  for  the  whole  term  after  the  lessee's 
death. (5) 


(1)  Solleck  V.  Sellcck,  8  Conn.  79,  n. 

(2)  Andrews  v.  Andrews,  8  Conn.  79. 

(3)  4  Kent,  85 ;   1  Cruise,  174 ;   2  Black. 


Comm.    112.     See   Hitchman   v.   Walton,  4 
Mees.  &  "W.  403. 

(4)  Co.  Lit.^5  b. 

(5)  Wright  V.  Cartwright,  1  Burr.  282. 


176 


ESTATE  FOR  YEAR« 


[CHAP.  XIY. 


5.  This  estate  is  never  created,  like  a  life  estate,  by  act  of  law,  but 
always  by  act  of  parties.  The  title  is  applicable,  though  the  time  limi- 
ted be  less  than  a  year.(l)(a) 

6.  Every  estate  for  years  must  have  a  certain  beginning  and  ending, 
to  be  ascertained,  at  its  creation,  either  by  express  words,  or  b}^  refer-' 
ence  to  some  certain  collateral  act.(2) 

7.  According  to  the  maxim,  '■'■  id  certura  est  quod  certum  reddi potest,^^ 
a  lease  for  so  many  years  as  A  shall  name^  is  a  good  estate  for  j'ears  ; 
but  a  lease  for  so  many  years  as  A  shall  live^  or  by  a  parson  for  so  long 
a  time  as  he  shall  continue  in  that  ojQ&ce,  is  bad,  as  an  estate  for  years. 
In  England,  it  would  be  void  for  want  of  livery ;  but  in  this  country 
would  probably  create  a  life  estate.(3)(6) 

8.  A  conversance  for  twenty-one  years,  if  A  shall  so  long  live, 
creates  a  tenancy  for  years ;  because  the  estate,  though  it  may  end 
sooner,  cannot  last  longer,  than  the  time  fixed. 

9.  A  devise  to  executors,  for  payment  of  debts  and  till  the  debts  are 
paid,  gives  them  an  estate  for  so  many  j^ears  as  will  be  necessary  to 
raise  the  required  sum.  A  devise,  till  such  time  as  a  certain  sum  shall 
be  raised  from  the  rents  and  profits,  has  the  same  effect.  Lord  Coke 
speaks  of  the  former  of  these  estates  as  an  uncertain  interest ;  being 
neither  for  life,  for  years,  nor  at  will.  The  uncertainty  would  make  it 
a  life  estate ;  but  this  would  defeat  the  object,  as  the  party  might  die 
before  the  debts  were  paid. 

10.  Devise  to  trustees,  of  all  the  testator's  lands  in  A ;  in  trust  to 
permit  the  wife  to  enjoy  them  for  life,  afterwards,  out  of  the  rents  and 
profits,  to  pay  B  an  annuity  for  five  years,  if  he  live  so  long.  The  will 
also  gives  legacies,  to  be  paid  when  the  legatees  come  of  age,  and  con- 
stitutes the  wife  executrix.  Held,  the  trustees  took  a  chattel  interest 
in  the  lands  in  A,  either  until  the  legacies  were  paid,  or  all  the  legatees 
came  of  age. (4) 

11.  A  feoffment  to  the  use  of  A,  his  executors  and  assigns,  till  ten 
pounds  should  be  levied  out  of  the  profits,  was  held  to  pass  a  chattel 
interest.(o) 

12.  Tenancy  lor  years  is  an  inferior  title  to  a  life  estate,  however 


(1)  Lit.  67  ;  Co.  Litt.  54  b. 

(2)  1  Cruise,  174. 

(3)  2   Bl.   Cora.  115;   Co.  Litt.  45   b,  n.  2 ; 
Goodrif^ht  v.  Ricliardscn,  3  T.  R.  4G3. 

(4)  Co.  Litt.    42  a;    Matthew  Manning's 


case,  8  Rep.  96  a;   Sir  Andrew,  &c.,  4  Rep. 
81  b  ;  Carter  v.  Barnadiston,  1  P.  Wius.  509  ; 
Doe  V.  Needs,  2  Mees.  &  Wels.  129. 
(5)  Co.  Litt.  42  a,  n.  7. 


(a)  A  year,  in  law,  consists  of  three  hundred  and  sixty-five  days,  the  additional  day  of  leap 
year  not  being  reckoned;  and  a  half  year,  of  one  liundred  and  eighty-two  days.  A  month, 
in  England,  means  ordinarily  a  lunar  month,  except  in  mercantile  contracts,  or  where  the 
intention  is  otherwise.  But  in  this  country,  a  calendar  month  will  be  usually  intended. 
In  New  York  and  New  Hampshire,  express  statutes  so  provide.  So  in  Massachusetts,  in 
the  construction  of  statutes.  Co.  Litt.  135  b;  Ind.  Rev.  L.  409;  4  Kent,  95,  n.  b;  1  N. 
Y.  Rev.  St.  606 ,  Mass.  lb.  60 ;  N.  H.,  lb.  44.  As  to  the  meaning  of  the  word  day,  see 
Pulling  V.  The  People,  8  Barb.,  314;  Judd  v.  Fulton,  10  lb.  117. 

A  term  for  years  continues  through  the  anniversary  of  the  day  on  which  it  commenced. 
Ackland  v.  Tulley,  9  Ad.  &  Ell.   879.     See  Brewer  v.  Harris,  5  Gratt.  285. 

(h)  A  lease,  to  hold  till  a  child  then  unborn,  shall  come  of  age,  has  been  held  to  constitute 
a  tenancy  at  joill,  on  account  of  the  uncertainty  whether  the  child  will  ever  reach  that  age. 
Bishop,  &c.,  6  Co.  R.  35. 

Where  one  has  a  lease  for^rty  years,  a  grant,  for  so  many  years  as  shall  remain  at  his 
death,  is  void.  Otherwise,  wim  a  demise  for  so  many  years,  to  commence  after  his  death. 
The  Rector,  &c.,  1  Co.  153  a. 


CHAP.  XIV.] 


ESTATE  FOR  YEARS. 


177 


long  it  may  last;  being  in  its  nature  a  chattel  intercut,  according  to 
Lord  Coke,  "  never  without  suspicion  of  fi'aud,"(l)  and  not  real  estate. 
This  inferiority  may  be  traced  to  the  original  nature  of  such  tenancy, 
which  grew  out  of  the  mere  j^osses^ion  of  land  by  the  villeins,  in  the 
early  period  of  the  English  law.(a)  This  naked  possession  was  gradu- 
ally enlarged  into  a  tenancy  at  will,  yielding  rent  ia  kind,  and  at 
length  into  a  letting  of  the  land  for  a  certain  specified  time;  but  never 
rose  to  the  dignity  of  a  freehold.  Before  the  statute  of  Gloucester, 
passed  in  the  reign  of  Edward  I.,  the  law,  regarding  tenants  for  years 
as  rather  bailill's  or  servants,  than  as  having  any  estate  in  the  hxnd,. 
allowed  their  title  to  be  defeated  by  recovery  against  the  landlord  in  a 
real  action.  This  act,  and  the  statute  21  Henry  VIIL,  allow  such 
tenant  to  falsify  or  avoid  a  collusive  recovery. (2)  These  provisions 
have  been  re-enacted  in  New  York  and  North  Carolina,  and  extended 
to  a  tenant  holding  by  an  execution  title.(3) 

13.  Such  being  the  nature  of  his  estate,  a  tenant  for  years  is  not  said 
to  be  seized  of  the  land^  hnt  only  possessed  of  the  term.  The  subject  of 
seizin  has  already  been  considered,  (chap.  2.) 

14.  At  common  law,  the  mere  delivery  of  a  lease  does  not  make  the 
lessee  a  tenant  for  years,  till  he  enters.  But  ho  has  an  interesse  termini, 
which  passes  to  his  executors,  if  he  die  without  taking  possession,  and 
may  be  assigned  over.  So,  when  one  buys  land  at  a  sheriff's  sale, 
upon  which  there  is  a  lease  from  the  defendant  in  execution  older  than 
the  judgment,  and  at  the  time  of  the  sale  the  lessee  has  not  entered  into 
possession,  the  purchaser  buys,  subject  to  the  lessee's  right  of  entry 
and  user.  Before  entry,  a  lessee  cannot  maintain  trespass.  But,  more 
especially  as  against  a  wrong-doer,  his  possession  of  a  part  is  that  of 
the  whole.  And,  under  the  statute  of  uses,  an  estate  for  years  may  be 
created  without  entry.(4) 

15.  It  is  remarked,  that  there  are  subtleties  upon  the  subject  of  an 
inter  esse  termini,  that  betray  excessive  refinement,  and  lead  to  useless 
abstruseness  ;(5)  and  the  rule  of  American  law  is  stated  to  be,  that  the 
execution  and  delivery  of  the  lease  perfects  the  title  of  the  lessee  to 
all  intents  and  purposes.(6)(Z*) 


(1)  Co.  Litt.  46  a. 

(2)  1  Cruise,   172;  Gilb.  Ten.   34;  Wise. 
Rev.  Sts.  314. 

(3)  1   N.  C.   Rev.  Sts.  261 ;  2  N.  T.  Rev. 
Sts.  340. 

(4)  Litt  58,  66,  324,  459;    Co.  Lit.  200  b, 
46  b,  61  b,  270  a;  1  Cruise,  175-6;  Williams 


V.  Bosanquet,  1  Brod.  &  B.  238 ;  Copeland  v. 
Stephens,  1  B.  &  A.  593  ;  Raine  v.  Alderson, 
6  Scott,  691  :  Field  v.  Howell,  6  Geo.  423  ;  2 
Phil.  Evi.  182;  Taylor  v.  Perry,  1  Scott 
N.  576. 

(5)  4  Kent,  97,  n.  a. 

(6)  Walk.  Intr.  278. 


(a)  In  the  tune  of  Littleton,  the  letting  of  lands  to  a  villein,  for  years,  operated  as  an  en- 
franchisement. Litt.  205.  By  the  ancient  law,  a  term  could  not  exceed  forty  years.  Co. 
Lit.  45,  b.  By  the  constitution  of  New  York,  (1846,J  agricultural  leases  are  limited  to  twelve 
years. 

(6)  If  a  person  receive  a  lease  hy  metes  and  bounds,  his  possession  is  co-extensive  there- 
with, and  is  not  available  to  establish  the  possession  of  his  landlord  any  farther.  Massengill 
V.  Boyle.s,  11  Humph.  112. 

A  lease  cannot  give  the  lessee  such  a  constructive  possession  of  the  whole  tract,  of  which 
the  defendant  occupied  a  part  at  the  time  of  the  demise,  as  will  enable  him  to  maintain  tres- 
pass against  the  defendant,  however  good  the  title  of  the  lessor  may  be.  Wilson  v.  Douglas, 
2  Strobh.  97. 

Littleton  says,  "  when  the  lessee  entereth  by  force  of  the  lease,  then  is  he  tenant  for  term 
of  years,"  and  the  lessor  may  distrain  or  have  an  action  of  debt  for  rent.   Lord  Coke  says,  "  to 

Vol.  I.  12 


178  ESTATE  FOR  TEARS.  [CHAP.  XIY. 

16.  It  seems,  if  a  lessee  enter  upon  the  land  before  tbe  time  agreed 
on,  his  entry  is  a  disseizin,  not  a  possession  under  the  lease ;  and, 
although  he  remain  in  possession  after  the  time,  he  is  still  a  disseizor 
as  before,  bj  rdatcon.{i) 

17.  But  if  a  lease  is  limited  from  a  time  past,  and  the  lessee  was  in 
possession  before  that  time,  this  shall  be  intended  to  have  been  by  per- 
mission, and  not  a  disseizin. (2) 

17  a.  After  an  agreement  to  lease,  if  the  owner  notifies  the  applicant 
for  a  lease,  that  he  cannot  take  possession  until  a  lease  is  made  and 
security  given  for  the  rent ;  and  the  applicant  subsequently  takes 
possession,  and  cultivates  a  part  of  the  premises  at  the  same  time  with 
the  owner ;  he  cannot  recover  of  the  owner  in  trespass,  although  the 
owner  harvested  and  retained  the  entire  crops ;  such  notice  being 
sufficient  to  prevent  any  dispossession  of  the  lessor.(3) 

18.  An  estate  for  years  may  be  created  to  commence  in  futuro^  and 
the  lessee  acquires  an  immediate  interest ;  because  such  conveyance 
does  not,  like  a  conveyance  of  the  freehold  in  fiduro^  place  the  latter  in 
abeyance^  which  is  contrary  to  the  policy  of  the  law.(a) 

19.  Where  a  lease  is  to  commence  in  faiuro,  if,  before  entry  of  the 
the  lessee,  a  stranger  enter  by  wrong,  the  former  ma}^  still  make  a  valid 
assignment  of  his  term  ;  because,  before  entry,  the  estate,  not  being 
vested,  cannot  be  divested  or  turned  to  a  mere  right,  by  any  wrongful 
act ;  but  when  the  lawful  time  of  entry  arrives,  the  lessee  or  his  as- 
signee enters  b}^  a  title  paramount  to  all  intermediate  claims.(4) 

(1)  Henniiigs  v.  Brabason,  1  Lev.  45.  |      (3)  Crotts  v.  Collins,  13  Illib.  367, 

(2)  Waller  v.  Campian,  Cro.  Eliz.  906.  1      (4)  1  Cruise,  176. 


many  purposes  be  is  not  tenant  for  years"  till  entry  ;  and  instances  that  his  estate  cannot 
be  enlarged  by  a  release,  although  he  may  release  the  rent ;  that  the  lessor  cannot  grant 
away  the  reversion,  as  such,  nor  the  lessee  make  a  valid  surrender.  But  a  release  will 
operate  to  extinguish  the  rent,  whether  made  before  or  after  commencement  of  the  term. 
And,  before  entry,  there  may  be  a  surrender  in  law,  as  by  taking  a  new  lease.  Co.  Lit.  338  a. 
In  an  action  by  a  lessee  against  the  lessor,  for  refusing  to  deliver  the  ^''remises,  the  plaintiff 
cannot  offer  evidence  of  a  contract  to  assign  the  lease,  or  a  proposal  to  purcliase  it.  Law- 
rence V.  Wardwell,  6  Barb.  423.  But  he  may  show  the  amount  of  monej^  paid  to  workmen, 
whom  he  was  obliged  to  discharge  for  this  cause.  See  Noyes  v.  Anderson,  1  Duer,  342. 
So  he  may  recover  expenses  incurred  in  preparing  to  remove  to  and  occupy  the  premises, 
together  with  the  difference  between  the  real  value  of  the  rent  and  the  sum  agreed  to  be 
paid ;  but  not  the  profits  which  he  might  have  made  in  his  business,  had  he  occupied  the 
premises.     Giles  v.  O'Toole,  4  Barb.  261. 

Where  demised  premises  are  destroyed  after  the  execution  of  the  lease,  but  before  the 
commencement  of  tlie  term,  and  before  the  lessee  has  taken  possession,  he  is  not  liable  for 
rent.     Wood  v.  Hubbell,  5  Barb.  601. 

Delivery  of  possession  is  necessary  to  the  obligation  to  pay  rent,  whether  the  lessor 

refuses,  or  is  unable,  to  give  possession.     lb. 

In  the  equitable  action  for  use  and  occupation,  the  tenant  is  not  answerable,  unless  he 

has  had  the  beneficial  enjoyment  of  the  property.     Gilhooley  v.  Washington,  4  Comst.  217. 

But  the  action  of  covenant  upon  a  sealed  lease,  for  the  non-payment  of  rent,  does  not  depend 

upon  occupation  and  enjoyment.     lb. 

Where  a  lessor  made  a  fraudulent  representation  to  his  lessee  as  to  the  territorial  extent 

of  his  right,  and  the   lease  was  made  for  a  term  commencing  in  futuro,  and  the  lessee 

took  possession  at  the  commencement  of  the  term,  and  after  having  discovered  the  fraud ; 

held,  the  lease  passed  a  present  interest  in  the  term  to  the  lessee  ;    and,  by  taking  possession, 

he  waived  only  his  right  to  rescind  the  contract,  but  not  his  right  to  recover  the  damages 

occasioned  by  the  fraud.     Whitney  v.  Allaire,  1  Comst.  305. 

(a)  See  oh.  2.     Allaire  v.  Whitney,  1  Hill,  484 ;  Field  v.  Howell,  6  Geo.  423  ;  Ind.  Rev. 

Sts.  232. 


CHAP.  XIV.] 


ESTATE  FOR  YEARS. 


179 


20.  So  if  after  commencement  of  the  term  the  lessor  continue  in 
possession,  the  lessee  may  still  make  a  valid  assignment.(l) 

21.  But  where  a  lessee  in  futuro^  having  entered,  is  turned  out  of 
possession,  he  can  no  longer  make  a  valid  assignment;  having  merely 
a  right  of  entry  left  him,  which  is  not  assignablc.(2)('^/) 

22.  A  freehold  estate,  in  the  language  of  Lord  Coke.'cannot  begin 
nor  end  xvUhout  ceremony.  Hence  such  estate  can  in  general  be  termi- 
nated, before  its  natural  expiration,  only  by  some  similar  act  to  that 
with  which  it  commenced,  such  as  entry.  But  a  lease  for  3'ears  may 
begin,  and  so  may  end,  without  ceremony.  Hence,  it  may  be  made  to 
cease  by  a  proviso  in  the  instrument  itself.  Thus  a  trust  term  will 
cease,  upon  fulfilment  of  the  trusts  for  which  it  was  created,  if  the  in- 
strument creating  it  so  provide.(8) 

23.  An  estate  for  years  is  denominated  a  chattel  real.  Being  an  in- 
terest in  land,  it  has  the  quality  of  immobility,  which  constitutes  it 
real ;  but  having  no  indeterminate  duration^  it  is  not  ranked  with  in- 
heritances and  other  freeholds,  but  is  a  mere  chattel.(6)  Hence  an  estate 
for  years,  upon  the  owner's  death,  passes  with  personal  property  to  the 
executor,  &c.,  and  not  with  the  real  estate  to  the  heir.(4) 

24.  Upon  this  principle,  the  levy  of  an  execution  upon  a  term,  in 
the  form  of  a  levy  on  real  estate,  in  Massachusetts  is  held  void.  But 
in  New  Hampshire  a  different  rule  has  been  settled. (5) 

25.  In  Massachusetts  it  is  now  provided,  that  a  term  originally 
created  for  a  hundred  years  or  more,  and  of  which  fifty  remain  unex- 
pired, shall  have  all  the  incidents  of  a  fee-simple.  So,  in  Vermont,  the 
owners  of  long  terms  are  invested  with  some  of  the  privileges  of  free- 
holders. And  in  Ohio,  lands,  held  by  permanent  leases,  are  treated  as 
real  estate  in  regard  to  judgments  and  executions,  and  descent.  But  a 
term  for  ninety-nine  years  is  to  be  sold  on  execution,  as  a  chattel. (6) 

2t).  The  legal  succession  to  a  term  cannot  be  controlled  by  any  limi- 
tation in  the  conveyance.  Hence,  if  a  lease  be  made  to  a  minister,  or 
other  sole  corporation,  and  his  successors,  the  estate  will  still  pass,  upon 
his  death,  to  his  executor  or  administrator,  who  shall  hold  it,  not  in 
autre  droit,  but  in  his  own  right.  The  reason  of  the  above  rule  is,  that 
a  chattel  can  never  be  in  abeyance.  Therefore  such  estate  may  pass 
to  the  successor  of  a  sole,  who  is  merely  the  head  of  an  aggregate, 
corporation.(7) 


(1)  "Wheeler  v.  Tliorogood,  Cro.  E)iz.  127; 
1  Leon.  118. 

(2)  Bniorton  v.  Rainsford,  Cro.  Eliz.  15; 
Saffyn's  case,  5  Rep.  124  a. 

(3)  Co.  Lit.  214  b;  Ark.  Rev.  Sts.  263. 
See  NicoU  v.  Walworth,  4  Denio,  385. 

(4)  1  Cruise,  177;  "Wiscon.  Rev.  Sts.  ch. 
56,  C5 ;  Ellison,  2  Y.  &  Coll.  528  ;  Ackland 
V.  Pring.  2  Man.  &  G.  937  ;  Dillingham  v. 
.Jenkins,  7  S.  &  M.  479. 


(5)  Chapman  v.  Gray,  15  Mass.  439; 
Adams  v.  French,  2  N.  H.  387. 

(6)  Mass.  Rev.  St.  411;  2  Chase's  St.  of 
Ohio,  11G5;  Bisbee  r.  Hall,  3  Ohio,  465; 
Ohio  Sts.  1853  ;   1  Verm.  L.  199. 

(7)  Co.  Lit.  9  a,  90  a ;  1  Co.  Lit.  (Thomas' 
ed.)  224,  n.  k  ;  2  Bl.  Com.  431.  See  Daniels 
V.  Richardson,  22  Pick.  565. 


{a)  A  leases  to  B,  for  two  years  from  a  future  da^^,  a  house,  stated  in  the  lease  to  be  then 
in  possession  of  C.  C  holds  over  wrongfully  after  the  day  fixed.  B  cannot  sue  A,  as  on  an 
implied  promise  to  deliver  po.ssession.  Cozens  v.  Stevenson,  5  S.  &  R.  42.  If  a  lessee  as- 
sign his  lease  before  the  time  of  taking  possession  arrives,  a  judgment  docketed  against  him 
belbre  ho  became  lessee  is  not  a  lien  upon  the  laud,  as  he  never  had  possession.  Crane  v. 
O'Connor,  4  Edw.  Cli.  409. 

(6)  Though  for  999  years,  and  in  consideration  of  a  sum  in  gross.  Osborne  v.  Humph'-ey, 
7  Conn.  335.     Ace.  Spanger  v.  Stanler,  1  Md.  Ch.  31. 


180 


ESTATE  FOR  YEARS. 


[CHAP.  XIV. 


27.  Where  a  woman,  owning  a  chattel  real,  marries,  it  does  not,  like 
]3ersonal  chattels,  vest  in  the  husband  absolutely,  but  sub  modo.  He 
has  the  power  to  dispose  of  it ;  but,  if  he  does  not,  either  legally  or 
equitably,  it  reverts  on  his  death  to  her.(l) 

^•28.  Wliere  the  husband,  holding  a  term  in  right  of  the  wife,  leases 
the  land  for  a  shorter  period  and  dies,  the  wife  has  the  reversion,  but 
the  rent  goes  to  his  executors.(a)  If  the  husband  grant  the  whole 
term  on  condition,  and  the  executors  re-enter  for  a  breach,  they  hold 
absolutely. (2) 

29.  If  the  husband  and  wife  are  ejected  from  the  land,  and  the 
former  recovers  it  in  a  suit  brought  by  himself  alone,  this  vests  the 
term  absolutely  in  him. (3) 

30.  In  England,  by  the  statute  of  frauds,  if  a  wife  die  before  her 
husband,  he  is  entitled  to  administer  upon  her  estate,  and  takes  her 
chattels  real  to  his  own  use.  They  vest  absolutely  in  him,  and  upon 
his  death  pass  to  his  administrator.(4)  A  similar  rule  generally  pre- 
vails in  the  United  States. 

31.  The  purchaser  of  a  term  from  an  executor  is  in  no  case  bound 
to  see  to  the  application  of  the  purchase-money.  Because,  being  per- 
sonal estate,  such  term  is  primarily  liable  for  debts.(5) 

32.  A  freehold  cannot  be  derived  out  of  a  term.  Thus,  a  rent- 
charge  for  life,  proceeding  from  an  estate  for  years,  is  itself  a  chattel.(6)(6) 

33.  The  incidents  of  an  estate  for  years  are  in  some  respects  the  same 
with,  and  in  other  respects  different  from,  those  of  a  life  estate. 

34.  Tenant  for  years  is  entitled  to  estovers.     (See  ch.  4.) 

35.  An  estate  for  years,  with  other  chattels,  is  primarily  subject  to 
the  payment  of  debts,  in  the  hands  of  an  executor  or  administrator. 
So,  also,  it  is  liable  to  be  attached  and  sold  on  execution.  But  a 
judgment  is  no  lien  upon  it.  This  point  will  be  further  considered 
hereafter.(7)(c) 

36.  By  the  old  law,  the  gift  of  a  term,  like  that  of  any  other  chattel, 
for  a  day  or  an  hour,  passed  the  entire  interest.  But  this  rule  has 
been  changed,  and  a  term  for  years  may  now  be  limited  for  any  num- 
ber of  lives  in  being.(8) 

37.  But  a  term  for  years  is  not  entailable.     The  disposition  of  such 


(1)  Steed  V.  Cragh,  9  Mod.  43  ;  Co.  Lit.  46 
b;  Ellison,  2    Y.    &   Coll.    528;    Wynne  v. 
Wynne,  4.  Mann.  &  G.  253. 
■  (2)  Co.  Lit.  46  b. 

(3)  lb. 

(4)  Co.  Lit.  351  a,  n.  1 ;  Harg.  Law  Tracts, 
475;  Squibb  v.    Wynne,   1   P.  Wms.    378; 


Cart  V.  Reeve,  lb.  382 ;  Whitaker  v.  Whit- 
ker,  6  John.  112. 

(5)  Ewer  v.  Corbet,  2  P.  Wms.  148. 

(6)  1  Cruise,  179. 

(7)  1  Cruise,  183  ;  Vredenbergh  v.  Aforris,  1 
John.  Cas.  223  ;  Shelton  v.  Codman,  3  Cush. 
318.     See  Mass.  Sts.  1847,  440-1.    - 

(8)  Dyer,  74,  pi.  18,  (7  b,  n.  a.) 


(a)  Demise  to  A,  and  B  his  wife,  for  twenty-one  year.s.  A  leases  to  C  for  nine  years. 
Held,  for  an  injury  to  his  reversion,  A  might  maintain  an  action,  alleging  the  estate  to  be 
his.     Wallis  v.  Harrison,  5  Mees.  &  W.  142. 

(b)  In  England,  an  exception  to  this  rule  is  the  case  of  tithes,  which  m§,y  be  freehold, 
though  the  estates  on  whicli  they  are  charged  are  not.     3  Bl.  Com.  104,  n. 

(c)  See  Judgment,  Execution.  The  sale  of  leasehold  property  by  a  sheriff  need  not  be  on 
the  premises,  and  his  return  is  sufficient  evidence  of  the  sale.  No  deed  is  necessary  to 
pass  a  title.    Sowers  v.  Vie,  2  Harris,  99. 


CHAP.  XIV.] 


ESTATE  FOR  YEARS. 


181 


term  to  one  and  the  heirs  of  his  body  passes  the  entire  interest ;  so  that 
the  estate  continues,  though  the  grantee  die  without  issue. (1) 

88.  In  genera],  where  a  tenant  for  years  becomes  seized  of  the  free- 
hold,(a)  the  term  meiyes  in  the  freehold  and  becomes  extinct.  So  one 
term  merges  in  another  immediately  expectant  thereon. .  The  same 
person  cannot  fill  the  characters  of  tenant  and  immcditite  reversioner 
in  one  estate,     *'  Nemo  potest  esse  et  dominus  et  tene)}s.^\2) 

39.  A  leases  to  B,  and,  before  the  rent  becomes  due,  conveys  the 
reversion  to  C,  and  C  conveys  it  to  B.  The  rent  is  hereby  extin- 
guished.(8) 

40.  There  is  no  merger,  where  the  two  estates  are  successive,  not 
concurrent;  as  where  a  lease  is  granted  to  tenant  ^^ pour  autre  vie"  to 
commence  at  the  termination  of  his  estate.  Nor  where  there  is  any 
intervening  estate,  either  vested  or  contingent;  or  the  estate  in  rever- 
sion or  remainder  is  smaller  than  the  preceding  estate.  Thus,  if  a 
lease  be  made  to  a  man  for  life,  remainder  to  him  for  years,  he  holds 
both  estates,  and  may  grant  either  of  them  distinctly ;  for  a  greater 
estate  may  uphold  a  lesser,  though  not  the  converse.(4) 

41.  Where  a  lessee  conveys  his  whole  interest  to  the  reversioner, 
reserving  a  rent,  no  reversion  being  left  in  the  former,  the  rent  is  not 
incident  to  a  reversion,  as  in  ordinar}^  cases,  and  there  is  no  merger. 
As  where  a  tenant  for  life  leased  for  her  own  life  to  the  reversioner.(5) 

41  a.  But  where  a  tenant  for  years  demised  to  the  remainder  man, 
to  have  and  to  hold  during  the  term,  reserving  to  the  lessor  the  right 
to  erect  buildings  on  the  premises,  without  molestation,  the  lessee  yield- 
ing and  paying  a  yearly  rent,  and  engaging  to  keep  the  fences  in  re- 
pair, and  to  pay  all  taxes,  "  it  being  understood,  that  in  case  the  lessor 
should  use  any  part  of  the  land  for  buildings  and  their  appendages,  a 
proportionate  amount  shall  be  deducted  from  the  rent  which  the  lessee 
is  to  pay;"  held,  the  term  merged  in  the  remainder,  and  that  the  lessee 
could  not  maintain  an  action  of  waste  against  the  lessor.(6) 

42.  Where  one  is  possessed  of  a  term  in  his  own  right,  and  seized 
of  the  freehold  in  autre  droit,  or  the  converse,  it  seems  the  doctrine  of 
merger  does  not  apply  ;  more  especially  where  one  of  the  estates  falls 
to  him  by  act  of  law.  Thus,  if  a  man  having  a  term  marries  a  woman 
who  afterwards  becomes  seized  of  the  freehold  b}'-  descent ;  or  if  one 
having  the  freehold  is  made  executor  of  a  tenant  for  years  in  the  same 
land  ;  the  term  does  not  merge.  Lord  Coke,  however,  says,  that  where 
a  man  having  a  term  for  years  takes  the /erne  lessor  to  Avife,  the  term  is 
extinct.     And  in  the  case  of  Piatt  v.  Sleap,  this  doctrine  was  sustained 


(1)  Dyer,  1  a,  pi.  8,  and  n.  a;  1  Cruise, 
184;  Hayter  v.  Rod,  1  P.  Wms.  360;  Kinch 
V.  Ward,  2  Sim.  &  St.  409. 
■  (2)  Dyer,  112,  pi.  49,;  4  Kent,  98.  See 
Sharp  V.  Carlile,  5  Dana,  489;  Doe  v.  Lawes, 
1  Ad.  &  Ell.  195 ;  Webster  v.  Gilman,  1 
Story,  499;  Tayloe  v.  Gould,  10  Barb.  388  ; 


Cottee  V.  Richardson,  8  Eng.  L.  &  Equ.  498. 

(3)  York  V.  Jones,  2  N.  H.  454. 

(4)  Doe  V.  Walker,  5   Barn.  &  Cress.  Ill ; 
3  Pres.  on  Conv.  166. 

(5)  M'Murphy  v.  Minot,  4  N.  H.  251. 

(6)  Pynchon  v.  Stearns,  1 1  Met.  304. 


(a)  So,  where  the  tenant  mortgages  the  term  to  the  landlord.  Cottee  v.  Richardson,  8 
Eng.  L.  &  Equ.  498.  In  Virginia  it  is  provided,  (Sts.  1849,  oh.  260,  sec.  1,)  that  a  rever- 
sion expectant  upon  a  lease  shall  merge  in  any  other  estate  ;  but  not  to  affect  the  rever- 
Bioner's  claim  for  rent. 


182 


ESTATE  FOR  TEARS. 


[CHAP.  XIY. 


by  a  dissenting  judge,  who  said  to  the  counsel  at  the  bar,  that  as  clear 
as  it  was  that  they  were  at  the  bar,  so  clear  it  was  that  the  term  was 
estinct.(l) 

43.  It  is  said,  that  where  a  wife  has  the  inheritance,  and  the  husband 
a  term  in  the  same  land,  if  issue  be  born  to  them  by  which'  the  hus- 
band becomes  tenant  by  the  curtesy,  the  term  merges.(2) 

44.  So,  also,  that  a  term  held  by  one  as  executor  will  merge  in  the 
freehold  held  by  him  in  his  own  right,  as  far  as  he  is  concerned,  and 
as  betAveen  his  heir  and  executor,  though  not  in  relation  to  creditors 
of  the  estate,  who  would  be  thereby  deprived  of  their  debts.(3) 

45.  A  distinction  is  made  between  the  case  of  a  term  held  by  the 
husband,  and  a  freehold  by  the  wife ;  and  that  of  a  freehold  in  him, 
and  a  term  in  her.  There  shall  be  a  merger  in  the  former  case,  but 
none  in  the  latter ;  upon  the  ground  that  marriage,  being  the  free 
act  of  the  husband,  may  fairly  be  allowed  to  prejudice  his  rights,  but 
not  those  of  his  wife,  on  whose  part  the  marriage  is  regarded  as  the 
act  of  law.(4)(a) 

46.  Merger  is  not  favored  in  equity,  and  will  not  be  allowed  but  for 
special  reasons.  At  law,  the  intention  of  a  party  is  not  regarded ;  but 
in  equity,  if  there  is  any  beneficial  interest  to  be  protected,  such  as  that 
of  creditors,  infants,  legatees,  husbands,  or  wives,  or  any  right  or  inten- 
tion to  the  contrary  ;  the  union  of  the  legal  and  equitable  interests — 
as  for  instance,  those  of  trustee  and  cestui  que  trust — in  one  person, 
will  not  effect  a  merger.  The  same  rule  applies  where  the  party  in 
whom  the  two  estates  unite  is  under  some  personal  incapacity,  such  as 
infancy  or  insanity,  to  make  an  election. (5) 

47.  The  foregoing  view  'of  the  doctrines  relating  to  merger  fully 
justifies  the  remark  of  a  distinguished  writer  upon  the  subject,  Mr, 
Preston,  that  the  learning  in  relation  to  it  is  involved  in  much  intricacy 
and  confusion,  and  there  is  difiiculty  in  drawing  solid  conclusions 
from  cases  that  are  at  variance  or  totally  irreconcileable  with  each 
other.(6) 

48.  Analogous  to  merger,  is  a  surrender-  ;  the  former  never  takes 
place,  unless  there  is  a  legal  power  to  make  the  latter.  Surrender  is 
the  yielding  up  of  an  estate  for  life  or  years,  to  him  that  hath  the  next 
immediate  estate  in  reversion  or  remainder.  Hence,  it  appears,  that 
whil'e  merger  is  the  act  of  law,  surrender  is  the  act  of  a  party.     The 


(1)  See  Doe  V.  Pett,  11  Ad.  &  Ell.  842; 
Cro.  Jac.  275. 

(2)  Sug.  on  Ven.  533  ;  Piatt  v.  Sleep,  1 
Bulstr.  118. 

(3)  1  Rolle  Abr.  934,  pi.  9 ;  1  Cruise,  186; 
Cage  V.  Acton,  1  Ld.  Ray.  520 ;  Sug.  533. 
See  Gibson  v.  Crehore,  3  Pick.  482. 

(4)  1  Cruise,  186;  Bac.  Abr.  Lease,  R. ; 
Cage  V.  Acton,  1  Salk.  326.  But  see  Godb. 
2;  4  Kent,  101;  3  Pres.  on  Convey.  273, 
285,    294;    Donisthorpe  v.  Porter,    2    Eden 


I  Rep.  162.     See  also  Huston  v.  Wickersham, 
8  Watts,  519. 

(5)  Pres.  on  Convey.  43-49 ;  Gardner  v. 
Astor,  3  John.  Cha.  53 ;  Starr  v.  Ellis,  6, 
393  ;  Freeman  v.  Paul,  3  Greenl.  260  ;  Gib- 
son V.  Crehore,  3  Pick.  475  ;  James  v.  John- 
son, 6  John.  Cha.  417  ;  James  v.  Morey,  2 
Cow.  246 ;  Mechanics',  &c.  v.  Edwards,  1 
Barb.  271 ;  Lewis  v.  Starke,  10  S.  &  M.  120. 

(6)  4  Kent,  102. 


(a)  Where  a  husband,  in  right  of  his  wife,  accepted  land  at  the  appraised  value,  under  a 
partition  in  the  Orphan's  Court,  of  the  estate  of  her  ancestor,  and  entered  into  recognizances  to 
pay  the  valuation  to  the  other  heirs ;  held,  he  acquired  a  life  estate  in  his  wife's  share  of  the 
land,  and  a  fee-simple  in  his  own  right  in  the  residue.     Snevily  v.  Wagner,  8  Barr,  396. 


CHAP.  XIV.]  ESTATE  FOR  YEARa  183 

former,  indeed,  as  well  as  the  latter,  is  often  the  result  of  a  party's  own 
act;  as  where  he  voluntarily  purchases  the  reversion  or  remainder; 
but  the  result  or  final  operation  itself,  of  drowning  one  estate  in  the 
other,  is  an  act  of  law ;  while  a  surrender  has  this  very  extinguish- 
ment, in  the  mind  of  the  party  making  it,  for  its  sole  object  It  is  said, 
that  a  relinquishment  by  the  tenant  to  the  reversioruRP  or  remainder- 
man constitutes  a  surrender ;  while  a  grant  of  it  produces  a  merger. 
It  is  presumed,  however,  that  no  such  subtle  and  artificial  distinction 
would  be  now  recognized.  Thus,  if  a  lessee  conveys  his  interest  to 
the  landlord,  by  an  instrument  in  the  form  of  the  lease,  this  is  a  surren- 
der, and  merges  the  Lerm.(l)(a) 

49.  As  the  interest  of  an  under-lessee  would  not  merge  in  the  rever- 
sion of  the  lessor,  if  acquired  by  the  former ;  so  he  cannot  surrender 
to  the  lessor,  but  only  to  his  immediate  landlord,  or  his  assignee.(2) 

49  a.  A  lease  provided,  that  the  lessee  should  surrender  the  premises  at 
the  lessor's  request,  upon  failure  to  pay  the  rent  within  a  certain  time. 
Held,  a  provision  for  the  lessor's  benefit,  and  that  it  did  not  authorize 
the  lessee  to  surrender  for  the  purpose  of  giving  up  the  lease.(3) 

50.  Though  a  surrender  is  characterized  as  the  act  ofapart/j,  yet  it 
may  be  implied,  in  law.  Before  the  statute  of  frauds,  the  cancella- 
tion of  a  lease  operated  as  such  ;  but,  since  the  statute,  it  is  otherwise 
But  the  doctrine  seems  now  well  established,  though  once  doubted, 
that  the  acceptance  of  a  new  lease,  even  by  parol,  or  of  any  estate  in- 
consistent with  the  old  one,  is  a  surrender  in  law,  although  the  new 
lease  be  voidable,  if  not  absolutely  void.  So  an  assent  that  the  lessee 
shall  cease  to  be  liable,  and  the  acceptance  of  a  substituted  tenant, 
discharges  the  lessee.  So,  an  abandonment  by  the  tenant  is  a  surrender, 
and  authorizes  the  landlord  to  re-enter.(4) 

61.  A  surrender  extinguishes  the  relation-of  landlord  and  tenant,  and 
all  their  rights  as  such.  Thus  it  extinguishes  all  rent  not  then  due.(5) 
So,  it  seems,  while  a  surrender,  made  by  the  original  lessee,  has  no  effect 
to  destroy  the  estate  of  his  sub-tenant,  it  at  the  same  time  discharges 
the  latter  from  his  covenants  and  liabilit}^  for  rent.  To  remedy  this 
evil,  an  English  statute  provides,  that  a  surrender  made  for  the  purpose  of 


(1)  1  Prest.  23,  25,  153;  Co.  Lit.  338,  a.; 
Doe  V.  Forwood,  3  Ad.  &  Ell.  N.  627  ; 
Shepliard  i'.  Spaulding,  t  Met.  416. 

(2)  2  Prest.  Abstr.  7. 

(3)  Proctor  V.  Keith,  12  B.  Mon.  252. 


ch.  116,  sec.  13;   Greider,  &e.,  5  Barr,  422  ; 
Roe  V.  York,  6  E.  86  ;  McKinney  v.  Reader, 
7  Watts,  123  ;  Hosseltine  v.  Seavey,  4  Shepl. 
212.    See  Prestais  v.  McCall,  7  Gratt.  126. 
(6)  Barton's  case,    Moore,  94 ;   Webb.    v. 


(4)  Magennisi;.  McCullogh,  Gilb.  Cas.  236;     Russell,  3  T.  R.  401;  2  Sliep.  Touch.  (Prest.) 
Whitney  v.  Meyer.s,  1  Duor,  266;  Livingston  |  301:  Bt.  4  Geo.  2,  ch.  28,  sec.  6 ;  1  N.  Y. 
t'.  Potts,  16  John.  28;  Jackson  v.  Gardner,  8  |  Rev!  Sts.  744;  N.  J.  Sts.  191-2. 
394:  Smith  v.  Miner,  2  Barb.  180;  Yir.  Code,  | 


(a)  But  if  A  &  B  leave  to  C,  and  C  afterwards  conveys  to  A,  this  is  no  surrender. 
Sperry  v.  Sperry,  8  N.  H,  477.  Where  there  is  an  outstanding  lease  for  years,  and  the  re- 
versioner makes  a  second  lease  to  a  third  person,  to  commence  immediately,  it  is  a  vested 
estate,  and  will  entitle  the  second  lessee  to  take  the  rents  reserved  by  the  former  lease,  al- 
thougli  his  right  of  possession  will  not  commence  until  the  expiration  of  the  first  term;  and, 
after  the  making  of  the  second  lease,  if  the  first  lessee  becomes  owner  of  the  reversion, 
his  lease  will  not  merge  in  the  greater  estate ;  but  if  the  term  of  the  second  lease,  instead 
of  commencing  immediately,  be  to  commence  at  the  determination  of  the  former  term,  then, 
on  the  first  lessee  acquiring  the  reversion,  his  term  will  merge,  and  the  term  of  the  second 
lease  commence  at  the  same  time.     Logan  v.  Green,  4  Ired.  Equ.  370. 


184 


ESTATE  FOR  TEARS. 


[CHAP.  XIV. 


renewal^  shall  have  no  effect  upon  the  relation  between  the  first  lessee 
and  his  tenant,  a  new  lease  being  made  by  the  landlord.  Similar  acts 
have  been  passed  in  New  York,  Virginia  and  New  Jersey.(l)(a) 

52.  It  has  been  intimated,  that  the  quitting  possession  of  premises 
leased,  and  delivering  up  the  key,  may  amount  to  a  surrender,  where 
these  acts  are  conformable  to  a  well-known  local  usage.  So,  although 
a  parol  license  to  a  tenant  to  quit  has  been  held  not  to  discharge  him, 
acceptance  of  a  new  tenant  is  a  surrender,  and  does  discharge  him.(6) 
But  where  a  tenant  for  years  quit  in  the  middle  of  a  year,  and  sent 
the  key  to  the  landlord,  who  gave  notice  that  he  should  claim  rent, 
took  possession,  and  offered  to  let  the  house ;  held,  the  tenant  was  lia- 
ble to  an  action  for  use  and  occupation,  from  the  time  of  leaving  till 
the  premises  were  again  leased.(2) 

52  a.  A  leased  to  B,  one  of  the  firm  of  C  &  B,  a  store  for  B's  sole  use, 
as  a  jewelry  and  fancy  goods  store,  in  expectation  that  he  and  C  would 
dissolve.  The  lease  contained  a  restriction  against  the  use  of  the  store 
for  any  other  business.  C  and  B  did  not  dissolve,  and  B  desired  to  re- 
linquish the  lease,  but  could  not  agree  with  A  on  the  terms.  B  never 
entered  into  actual  possession,  and,  while  the  store  was  vacant,  C  ex- 
ecuted a  lease  of  it  to  E  for  a  hat  store,  for  a  term  corresponding  with 
the  unexpired  term  of  B's  lease.  C  delivered  the  key  to  B.  Both  0 
and  E  disclaimed  all  connection  with  B,  and  denied  that  he  had  been  con- 
sulted, or  had  an}''  connection  with  either  of  them  in  the  transaction. 
Held,  that  E  miust  be  considered,  in  respect  to  A's  rights,  as  substituted 
in  the  place  of  B,  the  lessee.  (3) 

52  h.  After  a  lessee  had  underlet  the  whole  of  the  premises  by  two 
written  sub-leases,-  the  landlord  called  on  the  under-tenants,  produced 
the  sub-leases,  demanded  of  them  the  rent,  forbade  their  paying  any 
more  rent  to  the  original  lessee,  and  said  he  was  the  rightful  landlord, 
and  had  taken  the  place  off  the  lessee's  hands ;  and  he  afterwards  col- 
lected all  the  rents  which  were  collected  of  the  sub-tenants.  Held, 
there  was  a  surrender  of  the  original  lease  by  operation  of  law,  and 
that  the  landlord  could  not  collect  the  subsequent  rent  of  his  original 
lessee.  (4) 

58.  An  assignment  by  the  lessee,  with  permission  of  the  lessor,  can- 


(1)  Gneider.  &c.  5  Barr,  422. 

(2)  Randall  v.  Rich,  11  Mass.  496 ;  Mar- 
seilles V.  Kerr.  6  Wliart  500  ;  Lamar  v.  Mc- 
Namee,  10  G-ill  &  J.  116 ;  Aekland  v.  Lutley, 
9  Ad.  &  Ell.  879;  Felthain  v.  Cartwright,  7 


Scott,  695.     See  ch.  16,  sec.  110,  n. ;  4  ShepL 
212. 

(3)  Howard  v.  Ellis,  4  Sandf.  369. 

(4)  Bailey  v.  Delaplaine,  1  Sandf.  5. 


{a)  As  to  the  effect  of  a  surrender  by  the  lessee  after  assigning  the  lease :  See  Beman  v. 
Green,  1  Duer,  382. 

{h)  So  if  the  lessor  take  possession.  And  if  he  promise  money  to  the  tenant,  the  latter 
may  recover  it.  10  Gill  &  J.  116.  Any  new  agreement  with  the  tenant,  more  especially  if 
sanctioned  by  a  decree  in  Chancery,  is  equivalent  to  a  surrender.  Scott  v.  Hawsman,  2 
McLean,  180. 

Thus,  a  parol  agreement,  that  the  land  be  given  up,  and  no  subsequent  claim  made  for 
rent.  Gore  v.  Wright,  8  Ad.  &  Ell.  18.  The  words  "  renounce  and  disclaim,  and  also  surren- 
der and  yield  up  all  right,  &c..  use,  trust,  term,  &c.,  of  years,  &c.,  and  possession,  &c.,"  consti- 
tute a  surrender,  not  a  disclaimer.  Doe  v.  Stagg,  5  Bing.  N.  564.  See  Doe  v.  Cooper,  1 
Mann.  &  G.  135.  But  where  the  tenant,  under  a  parol  demise,  during  the  term  agreed  to 
give  up  possession  for  one  month  and  then  resume  it,  and  accordingly  quit,  but  the  land- 
lord would  not  re-admit  him  ;  held,  the  transaction  was  neither  a  surrender  nor  an  eviction, 
and  constituted  no  bar  to  a  suit  for  rent.     Dunn  v.  De  Nuovo,  3  Mann.  &  G.  105. 


CHAP.  XIV.]  ESTATE  FOR  YEARS.  185 

not  be  construed  as  a  surrender,  so  as  to  discharge  the  lessee  frona  his 
covenants,  and  from  liability  for  the  acts  of  the  assignee.(l)(a) 

54.  Tenant  for  years,  unless  specially  restrained,  may  either  assign 
or  underlet  ;(2)  the  former,  by  transferring  all  his  estate ;  the  latter, 
by  transferring  the  land  for  a  less  portion  of  time  than  his  whole  term, 
whereb}'  a  reversion  is  left  in  himself.  In  the  latter  case,  he  has  the 
power  of  distraining  for  rent ;  but  not  in  the  former, — because  he  has 
no  reversion.  An  under-lessee  is  not  liable  to  the  original  lessor  in  an 
action  of  covenant,  there  being  no  privity  between  them.  But  his  goods 
and  chattels  upon  the  land  have  been  held  liable  to  distress,  for  the  rent  in 
arrear.(6)  An  assignee  of  the  lessee  is  liable  to  an  action  of  debt  by  the 
landlord,  or  his  assignee,  upon  the  ground  of  privity  of  eslale,{c)  and 
even  notwithstanding  an  agreement  to  pay  the  lessee  ;((:Z)  while  the 
lessee  himself  still  remains  liable  upon  his  covenant,  by  privity  of  con- 
tract, notwithstanding  acceptance  of  rent  from  the  assignee.(e)  But  an 
assignment  alters  and  transfers  from  the  original  parlies  the  privity  of 
contract,  founded  merely  upon  implication  of  law ;  so  that  the  first  ■ 
lessee,  after  acceptance  of  rent  from  the  assignee,  it  not  liable  to  an  ac- 
tion of  debt,  but  only  of  covenant. (3) 

(1)  Jackson  1).  Brownson,  7  John.  227.         [Bibb,  538;    4  Kent,  95;   Holford  v.  Hatch, 

(2)  1  Cruise,  174.  See  Wooden  u  Butler,  Doug.  183;  Lekeux  v.  Nash,  Str.  1221; 
10  Miss.  716;  Lawrence  v.  "Williams,  1  Duer,  i  Howland  v.  Coffin,  9  Pick.  52;  Waldo  v. 
585;  University,  &c.,  v.  Foslyn,  21  Verra.  !  Hall,  14  Mass.  487;  Coles  v.  Marquand,  2 
52;  McFarlan  v.  Watson,  2  Comst.  286  ;  I  Hill,  447;  Dewey  v.  Dupuy,  2  Watts  &  S. 
Graves  1".  Porter,  11  Barb.  592.  1556;    Woilaston  v.  Hakewill,  3  Man.  &  Gr. 

(3)  Campbell  v.   Stetson,   2  Met.   504 ;  4  !  297. 


(a)  But  where  the  lessor  assented  to  the  assignment,  and  verbally  agreed  to  accept  the 
assignee  as  his  tenant,  and  took  him  for  the  rent;  held,- under  the  Revised  Statutes  of 
Michigan,  1833,  sec.  9,  a  surrender  of  the  lease,  and  that  the  lessee  was  no  longer  liable  for  the 
rent.     Logan  v.  Anderson,  2  Doug.  101. 

(l)   Contra,  Gray  v.  Rawson,  11  lUin.  527. 

In  New  Jersey,  he  is  made  liable  for  the  rent  to  the  landlord,  in  proportion  to  the  prem- 
ises occupied  by' him.     N.  J.  St.  1848,  224. 

(c)  Where  a  lessee  assigns  his  term,  and  rent  subsequently  accrues,  and  the  lessor  gives 
the  original  lessee  a  release  of  all  demands,  such  release  will  not  bar  an  action  against 
the  assignee  for  the  rent  accrued  subsequent  to  the  assignment.  McKcon  v.  Whitney,  3 
Deuio,  452. 

It  is  no  objection  to  the  recovery,  by  a  landlord,  against  the  assignee  of  his  les.see,  of  rent 
previously  accrued,  that  the  landlord  had  removed  the  defendant  for  non-payment,  under 
the  summary  statute  process.    lb. 

It  seems,  that  nothing  but  a  surrender,  a  release,  or  an  eviction,  can,  in  whole  or  in  part, 
absolve  a  tenant  from  the  obligation  of  his  covenant  with  his  landlord.  Per  Gibson,  C.  J. 
Fisher  v.  Milliken,  8  Barr,  111. 

Where  one  was  interested  in  a  lease  belonging  to  a  firm  of  which  he  was  a  member,  and 
also  as  having  received  rent  from  an  under-tenant,  though  the  under-lease  was  not  created 
by  him;  held,  ho  was  liable  upon  the  covenants,  as  an  equitable  assignee  in  possession. 
Sanders  v.  Benson,  4  Beav.  250;  ace.  Astor  v.  L'Amoreux,  4  Sandf.  524. 

(d)  A  parol  promise  to  pay  rent,  made  by  the  assignee  of  a  lease  under  seal,  with  a  surety, 
to  the  executor  of  a  lessor  and  indorsed  on  the  lease,  does  not  afl'ect  the  liability  of  the  as- 
signee for  the  performance  of  the  other  covenants  in  the  lease.  Torrey  v.  Wallis,  3  Gush.  442. 
Where  a  lessor  during  the  term  sold  tlie  premises  leased,  and  directed  the  rent  to  be  paid  to  the 
vendee,  and  the  lessee,  with  full  knowledge  of  the  sale  and  direction,  paid  the  rent  accord- 
ing to  his  obligation  to  a  party  other  than  the  vendee  ;  held,  the  vendee  could  not  recover 
rent  of  the  lessee  in  an  action  in  his  own  name,  without  an  express  promise  of  the  lessee 
after  the  assignment  to  pay  to  him.     Marney  v,  Byrd,  11  Humph.  95. 

(e)  Where  A  leased  to  B,  who  afterwards  assigned  the  lease  to  C,  and  A  sold  and  con- 
veyed the  land  to  D,  and  D  conveyed  the  same  to  E,  without  mentioning  the  lease ;  held, 
E  could  not  maintain  an  action  of  covenant  in  his  own  name  against  B,  upon  an  express 
covenant  lor  the  payment  of  rent.     Crawford  v.  Chapman,  17  Ohio,  449. 


186 


ESTATE  FOR  YEARS. 


[CHAP.  XIV. 


54  a.  A  party  holding  the  legal  title  of  land  in  trust  is  not  liable  for 
the  ground  rent  in  arrears,  if,  previously  to  the  time  the  rent  accrued, 
he  has  conveyed  or  assigned,  by  way  of  gift,  the  equitable  interest  to 
another,  who  is  in  possession  and  enjoyment  of  the  land  at  the  time  the 
rent  accrued,  and  was  during  the  time  for  which  it  is  due.(l) 

54  h.  Where  the  assignee  of  a  lease,  which  he  has  taken  in  trust  for 
another,  ceases  to  have  any  beneficial  interest,  and  has  yielded  the  posses- 
sion to  the  beneficiary,  the  privity  of  estate  between  him  and  the  lessor  is 
dissolved,  and  he  is  no  longer  liable  upon  the  covenants  of  the  lease.(2) 

54  c.  Thus,  where  A  bid  off  a  lease  at  a  judicial  sale,  and  received 
an  absolute  transfer  of  the  same,  and  then  agreed  that  B  should  have  the 
lease  on  paying  the  price,  and  B  immediately  took  and  always  kept 
possession  of  the  demised  premises,  and  subsequently  paid  A  in  full ; 
held,  after  such  payment,  A  was  no  longer  liable  to  the  landlord  as  as- 
signee of  the  lease,  although  he  did  not  transfer  it  to  B,  and  was  nom- 
inally assignee.(3) 

54  d.  A  party  in  possession,  (not  being  the  lessee,)  in  subordination 
to  the  lease,  is  presumed  to  be  an  assignee  in^favor  of  the  lessor. (4) 

54  e.  But  the  presumption  is  rebutted,  by  proof  of  a  surrender  of  the 
lease  by  the  lessee  to  the  lessor  during  such  party's  possession. (5) 

54/  If  the  lessor  produce  the  surrender,  he  thereby  admits  the  ten- 
ancy of  the  lessee  at  the  time  of  its  date.(6) 

55.  The  ordinary  distinction  between  an  assignment  and  an  under- 
lease is,  that  the  former  transfers  the  land  for  the  whole  term  ;  the 
latter,  for  only  a  part  of  it.  But  it  has  been  held  in  Ohio,  that  a 
transfer  of  only  a  part  of  the  lands,  though  for  the  whole  term,  is  an 
under-lease,  and  the  assignee  or  under-lessee  not  liable  for  rent  to  the 
lessor.  On  the  other  hand,  in  Kentucky,  such  transfer  is  an  assign- 
ment ;  and,  for  subsequent  rent,  the  assignee  is  liable  in  covenant  to 
the  lessor.(7)(a)  "^ 

55  a.  In  New  York,  the  following  cases  have  occurred  upon  the 
same  subject. 

(1)  "Wiekersham  v.  Irwin,  2  Harris,  108. 

(2)  Astor  V.  L'Amoreux,  4  Sandf.  524. 

(3)  lb. 

(4)  Durando  v.  Wyman,  2  Sandf.  597. 

(5)  lb. 

(6)  lb. 


(7)  Fulton  V.  Stuart,  2  Ohio,  216 ;  Cox  v. 
Fenwick,  4  Bibb.  538.  See  Wlieeler  v.  Hill, 
4  Shepl.  329;  Trustees,  &c.  v.  Clougb,  8  N. 
H.  22  ;  Daniels  v.  Richardson,  22  Pick.  565  ; 
Simpson  v.  Clayton,  6  Scott,  469. 


(a)  A  woman,  having  a  life  estate  in  certain  land,  leased  it  for  her  life,  reserving  an  annual 
rent,  but  without  a  clause  of  re-entry  for  non-payment  thereof.  The  lessee  having  conveyed 
the  land  in  fee,  and  his  grantee  having  taken  possession  ;  held,  such  grantee,  his  executor 
or  administrator,  was  liable  to  the  lessor  in  an  action  of  debt  for  the  rent.  Daniels  v. 
Richardson,  22  Pick.  565.  Such  grantee  having  conveyed  a  part  of  the  land,  held,  the  rent 
should  be  apportioned  to  each  part  according  to  its  annual  value.  lb.  Where  a  feoffment 
was  made  to  A  and  B,  to  the  uses,  &c.,  that  the  plaintiff  C  should  have  a  yearly  rent,  which 
A  covenanted  that  A  and  B,  their  heirs,  <fcc.,  should  pay ;  held,  that  A  stood,  in  relation  to 
C,  like  the  assignor  of  a  lease  as  to  the  landlord,  and  was  not  liable  to  an  action  of  debt, 
Randall  v.  Rigby,  4  Mees  &  W.  130. 

If  a  lessee  underlets  a  part  of  the  demised  premises,  and  the  sub-tenant  is  recognized  as 
such,  and  rent  demanded  of  him,  by  the  lessor,  the  lessee  and  sub-tenant  are  not  jointly 
liable  to  the  lessor,  for  the  mesne  profits  of  the  whole  premises.  Fifty  Associates  v.  How- 
land,  5  Cush.  214. 

Wliere  A  erected  a  nuisance,  and. leased  the  premises  to  B,  who  sub-let  to  C,  and  he  sub- 
let to  D;  it  was  held,  that  A,  B,  C  and  D  should  be  made  parties  to  a  bill  to  restrain  the 
nuisance ;  but,  if  B  had  assigned  his  whole  -interest  to  C,  B  would  not  be  a  proper  party. 
Brady  v.  Weeks,  3  Barb.  R.  157. 


CHAP.  XIV.] 


ESTATE  FOR  YEARS. 


187 


55  b.  In  covenant  against  the  assignee  of  the  lessee,  for  non-payment 
of  rent,  the  declaration  alleged,  that  all  the  estate  of  the  lessee  in  the 
premises  leased  had  come  to  and  vested  in  the  defendant  by  assignment. 
Issue  being  joined  upon  this  averment;  held,  the  point  of  such  issue 
was,  whether  the  defendant  was  assignee  of  the  whole  of  the  estate  of 
the  lessee  in  any  part  of  the  land  ;  and,  it  being  proved  that  he  was 
lessee  of  the  whole  estate  in  a  part  only  of  the  land  ;  held,  further,  that 
there  was  no  variance,  and  that  the  plaintills  could  recover  such  part 
of  the  rent  reserved,  as  the  defendant  was  liable  to  pay  in  respect  to 
the  part  of  the  premises  held  by  hira.(l) 

55  c.  Where  a  lessee  parts  with  the  residue  of  his  term  to  another 
person,  with  the  right  of  re-entry  reserved  to  the  lessee,  it  is  not  an 
assignment,  but  a  sub-lease,  and  the  lessee  has  the  right  to  re-enter  for 
a  breach  of  the  conditions.(2) 

55  d.  The  assignee  of  a  lessee  demised  the  premises  for  the  residue  of 
the  term,  reserving  the  delivery  of  possession  at  the  end  of  the  term, 
and  the  intermediate  possession,  in  case  of  destruction  by  lire.  Held, 
an  under-lease,  not  an  assignment.(3) 

56.  The  assignment  of  a  lease  subjects  the  assignee  to  certain  implied 
liabilities  to  the  assignor,  in  regard  to  the  payment  of  rent.  Thus,  if 
the  form  of  assignment  is  "  he  (the  assignee)  paying"  all  past  and  future 
rent,  and  indemnifying  the  plaintiffs  against  their  covenants,  and  the 
assignor  is  afterwards  obliged  to  pay  the  rent;  he  shall  recover  it  from 
the  assignee,  upon  the  promise  in  law  arising  from  his  acceptance  of 
the  assignment. (4)(a) 

57.  It  is  a  principle  of  the  English  law,  that  a  lease  cannot  be  va- 
lidly assigned  without  writing.  Mere  delivery  of  the  instrument 
itself,  it  seems,  passes  no  title.  This  provision  has  been  expressly  re- 
enacted  in  nearly  all  the  States,  (a  transfer  by  operation  of  law  only 
excepted.)(5) 

58.  In  New  York,  it  has  been  held  that  the  assignment  of  a  lease 
need  not  be  under  seal.  In  Pennsylvania,  a  lease  for  less  than  three 
years  may  be  transferred  by  parol.  In  Vermont,  the  assignment  of  a 
lease  for  more  than  a  year  must  be  by  deed,  acknowledged  and  re- 
corded.(6) 

59.  No  consideration  is  necessary,(7)  Where  the  consideration  is 
paid  by  one,  and  the  assignment  made  to  another,  the  whole  legal  and 
equitable  title  is  vested  in  the  latter,  except  as  to  creditors  of  the 
former.(8) 

60.  In  Ohio,  an  assignment  must  be  witnessed. (9) 


(1)  Van  Rensselaer  v.  Gallup,  5  Denio,  454; 
ace.  Same  v.  Jones,  2  Barb.  643. 

(2)  Linden  v.  Hepburn,  3  Sandf.  668. 

(3)  Post  V.  Kearney,  2  Comst.  394  ;  Kear- 
ney V.  Post,  1  Sandf.  105. 

(4)  Fletcher  v.  McFarlane,  12  Mass.  43. 

(5)  Anil).  Shep.  245;  Ind.  Rev.  L.  269; 


Stat,  of  U.  S.  passim. 

(6)  Verm.  Rev.  St.  315  ;  Holliday  v.  Mar- 
shall, 7  John.  211;  McKinney  v.  Reader,  7 
Watts,  23. 

(7)  Noy,  86,  90;   4  Dane,  135. 

(8)  Ostrander  !;■  Livingstan,  3  Barb. Ch. 416. 

(9)  Bisbee  v.  Hall,  3  Ohio,  465. 


(a)  On  the  other  hand,  the  assignor  may  agree  to  indemnify  the  assignee  against  all  back 
rents.  In  such  case,  if  the  former  refuse  to  pay  them,  the  latter  may  do  it  voluntarily,  and 
enforce  his  claim  for  indemnity.  Vechte  v.  Brownell,  8  Paige,  212.  "Where  the  assignee 
agrees  to  pay  rent  to  the  assignor,  the  executor  of  the  assignee's  executor  will  be  liable  to 
the  lessoi;  though  ho  has  done  no  other  act  than  proving  the  will.  If  the  rent  reserved  to 
the  assignor  exceeds  that  in  the  lease,  the  surplus  is  a  rent-seek.  AYollaston  v.  Hakewill,  3 
Man.  &  G-.  297. 


188  ESTATE  FOR  YEARS.  [CHAP.  XIV, 

60  a.  The  following  clause  in  a  deed,  "  I  do  hereby  rent  and  lease 
unto  the  said  A,  100  acres,  Avhere  he  now  lives,  for  the  unexpired  term 
of  the  general  lease  which  I  now  hold,  in  trust  for  the  use  of  B  during 
her  life,  and  to  the  heirs  of  A  after  the  death  of  the  said  B ;"  was  held 
to  vest  such  a  legal  interest  of  the  term  in  A,  as  to  enable  him  to  main- 
tain an  action  of  trespass  to  try  titles,  even  several  years  after  the  death 
ofB.(l) 

61.  The  assignor  of  a  term  for  years  is  liable  to  the  assignee,  upon 
any  express  covenants  contained  in  the  assignment;  but  no  covenants 
will  be  implied  between  them  against  eviction  by  the  lessor,  or  anyone 
claiming  under  him. 

62.  A  leases  land  to  B,  who  afterwards,  by  a  waiting  upon  the  lease, 
doth  "  grant,  bargain,  &c.,  to  0,  the  whole  of  the  premises,  &c.  To 
have  and  to  hold  during  the  term  ;  he,  the  said  C,  performing  all  cove- 
nants," &c,  C  is  evicted  by  a  person  claiming  under  a  mortgage  from 
A,  and  brings  an  action  of  covenant  therefor  against  B.  Held,  0  had 
a  claim  against  A  upon  his  covenants  in  the  original  lease,  which  were 
inherent,  and  went  with  the  land,  and  even  upon  the  covenant  implied 
in  the  words  "  grant  and  demise  ;"  but  that  the  action  would  not  lie 
against  B.     It  would  be  otherwise  with  an  under-lessee. (2)(a) 

63.  In  an  action  of  debt,  by  the  assignee  of  the  lessor  against  the 
assignee  of  the  lessee,  the  latter  cannot  offer  parol  evidence  that  the 
rent  exceeds  the  annual  value  of  the  premises.(8) 

64.  A  liability  to  pay  rent  does  not  run  with  the  land,  so  as  to  bind 
the  assignee  upon  the  covenant,  unless  there  be  :  1.  Some  estate  or  in- 
terest leased ;  2.  A  rent  reserved,  properly  so  called — that  is,  not  a 
sum  in  gross,  as  a  personal  debt,  but  a  reservation  out  of  the  leasehold 
estate  or  interest;  3.  A  covenant  of  the  lessee  to  pay  such  rent,(4) 

^b.  Whether  the  assignee  of  a  lease  is  liable  for  rent  accruing  before 
the  assignment,  seems  to  be  a  doubtful  question, (5) 

^z>  a.  A  conveyed  to  B,  subject  to  a  lease  for  years  previously 
given  by  A  to  C,  and  also  to  an  assignment  to  I)  of  A's  interest 
in  the  rents  reserved  by  such  lease,  for  a  portion  of  the  term,  all  which 
appeared  upon  the  face  of  the  deed,  which  was  duly  recorded,  C 
assigned  his  lease  to  B  ;  and  B  conveyed  different  portions  of  the 
estate  respectively  to  E  and  P.  C  became  insolvent.  Held,  that  D, 
as  assignee  of  the  lessor,  had  a  sufficient  remedy  at  law  against  E  and 
F,  as  assignees  of  the  lessee,  for  the  rent  of  the  portions  respectively 
occupied  by  them  during  the  term  for  which  they  actually  held  the 
premises ;  but  that  he  had  no  claim  upon  them  for  rent  accruing  be- 
fore they  acquired  their  title  respectively,  or  after  they  in  good  faith 
parted  with  it ;  and  that  P  was  not  liable  for  the  rent  of  a  portion  of 

(1)  Jobnson  v.  High,  3  Strobh.  141.  i  Burden  v.  Thayer,  3  Met.  t8.     See  Bordraan 


(2)  "Waldo  V.  Plall,   14  Mass.  486 ;    Blair 
Rankins,  11  Miss.  440.     See  ch.  15,  §  71. 

(3)  Howland  v.  Coffin,  12  Pick.   125. 

(4)  Croade  v.  Ingraliam,  13  Pick.  35  ;  ace. 


V.  Osborn,  23  Pick.  295  ;  Flower  v.  Hartopp, 

6  Beav.  476 ;  Graves  v.  Porter,  11  Barb.  592. 

(5)  M'Murphy  v.    Minot,    4    N.    H.    256  ; 

Woodf.  274, 338;  Child  v.  Clark,  3  Barb.  Ch.  52. 


(a)  But  where  a  lessee  assigned  by  deed,  containing  the  word  grant,  and  the  lessor  dis- 
trained upon  the  land  for  rent  due  before  the  assignment;  held,  the  assignee  might  maintain 
an  action  of  covenant  against  the  lessee;  but  not  assumpsit,  though  there  were  a  subsequent 
promise.     Baber  v.  Harris,  9  Ad.  &  Ell.  532. 


CHAP.  XIV.]  ESTATE  FOR  YEARS.  189 

the  premises  of  which  he  was  merely  a  mortgagee,  and  on  which  ho 
hatl  not  entered  under  his  mortgage.(l) 

Q6.  An  assignment  need  not  always  be  positively  proved,  but  may 
be  inferred  i'rom  acts  and  admissions  of  the  parties.(a)  And  one 
in  possession  of  leasehold  premises,  under  circumstances  which  im})ly 
an  assignment  of  the  lease  to  him,  is  liable  to  the  landlord  on  the 
covenant  to  pay  rent  during  his  occupation  of  the  premises,  by  virtue 
of  his  privity  of  estate.(2) 

67.  The  plaintiff  leased  land  to  A,  in  1802.  In  1812,  A  had  ceased 
to  occupy,  and  the  defendant  had  entered  and  under-let.  The  plaintiff 
brings  an  action  of  covenant  for  rent  against  the  defendant,  as  the  as- 
signee of  A;  and  offers  evidence  that  in  1810,  he,  the  plaintiff,  re- 
covered a  judgment  against  B,  for  rent  of  the  land,  as  an  assignee  of 
the  lease,  and  also,  that  in  1812  the  defendant,  having  recovered  a 
judgment  against  B,  extended  his  execution  upon  the  land,  and 
acknowledged  the  delivery  of  seizin.  Held,  that  the  former  part  of 
this  proof  seemed  sufficient  to  charge  the  defendant,  as  presumjjtive 
evidence  of  assignment ;  but  moreover,  that  the  latter  part  was  admis- 
sible, as  showing  admissions  of  the  defendant,  and  the  person  under 
whom  he  claimed.  Nor  did  it  change  the  case,  that  the  defendant 
levied  his  execution  as  upon  a  fee-simple,  since  by  this  levy  all  B's 
interest  passed. (3) 

(57  a.  A  lease  contained  a  covenant  of  the  lessee  not  to  assign  the 
lease,  nor  underlet  the  whole  or  any  part  of  the  premises,  without  the 
previous  consent  of  the  lessor  in  writing.  The  lessor  gave  his  consent 
in  writing,  that  the  lessee  might  underlet.  The  lessee  afterwards  made 
an  assignment  of  the  residue  of  the  term  to  the  plaintiff,  who  thereupon 
took  possession  and  occupied  until  he  was  ousted  by  the  lessor,  and 
then  brought  his  action  of  covenant  against  the  latter  for  a  breach  of 
the  covenant  for  quiet  enjoyment.  After  the  assignment,  and  before 
the  eviction,  the  defendant  received  and  accepted  rent  from  the  plain- 
tiff", and  gave  him  the  following  receipt  therefor:  "Received  from  Mr. 
T.  O'K.  ninety-five  dollars  for  rent,  in  full,  as  per  lease.  In  advance. 
$95.  T.  K."  Held,  whether  the  written  consent  extended  to  an 
assignment  of  the  premises  or  not,  the  receiving  of  rent,  with  know- 
ledge that  the  plaintiff  had  become  possessed  of  the  lease  and  premises 
by  assignment,  was  a  Avaiver  of  the  restriction  against  assigning;  and 
that  the  receipt,  referring  to  the  lease,  was  evidence(6)  that  the  defend- 

(1)  Child  V.  Clark,  3  Barb.  Cli.  52.  |      (3)  Adams  v.  French,  2  N.  11.  386. 

(2)  Glover  v.  Wilson,  2  Barb.  26-i.  I 


(a)  And  a  party  in  possession,  not  being  the  lessee,  will  be  presumed  to  be  an  assignee, 
not  an  under-tenant.  Acker  v.  Witherell,  i  Hill,  112.  So,  where  one  enters  into  possession 
of  vacant  demised  premises  by  the  consent  or  permission  of  the  tenant,  he  will  bo  considered, 
in  respect  to  the  landlord,  as  substituted  in  the  place  of  the  tenant,  although  ho  disclaims  all 
privity  with  him.  Howard  v.  Ellis,  4  Sandf.  369;  ace.  Carter  v.  Hammett,  12  Barb.  253. 
But  whether  an  assignee  of  property,  generally,  sliall  be  regarded  as  assignee  of  a  lease  be- 
longing to  the  assignor,  thereby  incurring  the  liabilities  incident  to  that  relation,  depends 
upon  his  own  election,     lb. 

(6)  Where  a  lessor  sues  an  assignee  of  his  lessee  in  covenant  for  rent,  the  premises  may 
be  referred  to  a.s  "  certain  premises  particularly  described  in  said  indenture."  Van  Rensse- 
laer V.  Bradley,  3  Dcnio,  135.  So  whore  the  assignment  is  of  a  part,  the  premises  may  be 
described  as  "70  acres  of  the  southerly  side  of  the  demised  premises."  lb.  But  not  as 
"the  said  demised  premises,  or  some  part  thereof."    And  a  count,  stating  that  a  certain 


190  ESTATE  FOR  TEARS.  [CHAP.  XIV. 

ant  had  knoAvledge  of  the  assignment  and  received  the  defendant  as  his 
tenant.(l) 

68.  While  a  lessee  may  assign  his  lease,  the  landlord  may  also  assign 
the  I'eversion,  and  thereby  render  the  former  liable  to  pay  rent  to  the 
assignee.  The  general  principles  of  law  upon  this  subject  have  been 
thus  well  stated  in  Massachusetts  by  Mr.  Justice  Wilde. (2) 

69.  At  common  law,  the  assignment  of  a  reversion  was  incomplete 
without  the  attornment  of  the  tenant — a  formal  process  of  acknowledg- 
ing or  adopting  the  transfer.  If  he  refused  to  attorn,  he  was  not  liable 
to  the  assignee  for  the  rent.  But  this  principle  was  found  inconvenient, 
as  the  tenant  might  unreasonably  retuse  to  attorn,  which  was  a  great 
clog  upon  transfers.  By  St.  4  &  5  Anne,  c.  16,  assignments  of  rever- 
sions were  made  valid  without  attornment ;  but  provision  was  made, 
that  all  payments  of  rents  to  the  lessor,  made  before  notice  to  the 
tenant  of  the  assignment,  should  be  held  good.(a)  I  have  always 
understood  that  attornment  was  never  considered  necessary  under  the 
provincial  government.  It  was  a  doctrine  of  the  old  feudal  law,  and 
was  not  applicable  to  our  tenures.  But  probably  notice  was  required 
here,  before  the  statute  of  Anne,  as  a  substitute  for  attornment;  or  if 
it  were  not  so,  as  the  provision  of  the  statute  is  founded  on  a  principle 
of  universal  equity,  it  must  be  supposed  to  have  been  adopted  here, 
unless  the  contrary  can  be  shown.  On  general  principles,  also,  we 
should  hold  notice  necessary  in  a  case  like  this,  (where  seven  quarterly 
instalments  had  accrued.)  For,  if  the  assignee  of  a  reversion  will  lie 
by  and  suffer  the  lessee  to  pay  rent  to  the  lessor,  as  it  falls  due,  he  has 
no  ground  for  complaint,  although  he  may  suffer  by  his  neglect.(6) 

70.  These  observations  were  made  in  a  case  where  there  was  a  cross- 
demand  due  from  the  lessor  to  the  lessee,  which  it  was  agreed  between 
them  should  go  in  payment  of  the  rent.  Whether,  after  notice  by  the 
assignee,  this  agreement  would  be  a  good  defence  against  him  in  a  suit 
for  the  rent,  was  not  distinctly  decided  or  considered ;  though  the  re- 
marks above  cited  would  seem  to  imply  that  such  defence  would  not 
be  allowed.     In  South  Carolina,  by  special  statute,  no  payment  of  rent 

(1)  O'Keefe  v.  Kennedy,  3  Cush.  325.  j  Bowser  v.  Bowser,   8  Humph.   23  :   Kirk  v. 

(2)  Farley  V.  Thompson,  15  Mass.  25.    See    Taylor,  8  B.  Mon.  262. 
Doev.  Forwood,  3  Ad.   &   Ell.  (N.   S.)  627;  I 


sum  is  due  "  for  the  said  demised  premises,"  is  bad.  lb.  A  count,  alleging  that  a  certain 
portion  of  rent  for  the  assigned  premises  is  due  and  in  arrear,  is  sufficient,  without  an 
averment  that  it  has  not  been  paid  by  the  lessee.     lb. 

(a)  With  this  protection,  however,  the  tenant  is  considered  to  have  attorned  at  the  time 
of  assignment.  The  notice  retofes.  Hence,  the  assignee  is  entitled  to  the  back  rents  due 
at  the  time  of  notice.  Moss  v.  Gallimore,  Doug.  275 ;  Birch  v.  Wright,  1  T.  R.  384.  See 
Keay  v.  Goodwin,  16  Mass.  4;  Fitchburg,  &c.  v.  Melven,  15  Muss.  269. 

(&)  Where  one  enters  on  land  without  title,  and  the  tenants  surrender  their  possession 
and  attorn  to  liim,  the  attornment  is  void,  and  not  the  commencement  of  an  adverse  posses- 
sion. Jackson  v.  Delancey,  13  John.  537.  Acquiescence  on  the  part  of  a  landlord,  in  the 
paj-ment  of  rent  by  his  tenant  to  a  stranger,  constitutes  a  valid  attornment.  Jackson  v. 
Brush,  20  John.  5.  But  in  ejectment  against  a  tenant  by  the  landlord,  the  former  cannot 
show  in  defence  a  parol  acknowledgment  by  the  latter  of  title  in  another.  Jackson  v. 
Davis,  5  Cow.  123.  Nor  will  a  tenant's  secret  agreement  to  attorn  destroy  the  possession 
of  the  landlord.  Rankin  v.  Tenbrook,  5  Watts,  386.  See  Doe  v.  Cooper,  I  Man.  &  G.  135; 
Harris  v.  Goodwyn,  2,  418,  n. 


CHAP.  XIV.]  ESTATE  FOR  TEARS.  191 

in  advance,  for  more  than  twelve  months,  shall  be  valid  against  third 
persons.(l) 

71.  A  landlord,  having  received  rent  in  advance,  sold  the  land 
before  the  expiration  of  the  time  for  which  rent  had  been  paid.  The 
purchaser  brings  an  action  for  money  had  and  received  against  him. 
Held,  this  action  did  not  lie,  even  if  it  was  agreed  tba*  the  plaintiff 
should  receive  such  rent.(2) 

,72.  Where  rent  is  paid  in  advance,  and  the  land  afterwards  conveyed 
without  notice  of  such  payment,  subject  to  the  lease;  the  tenant  is  not 
liable  for  the  rent  to  the  grantee.(3)(a) 

73.  In  New  Jersey,  Delaware,  Kentucky  and  Alabama,  statutes  ex- 
pressly provide  that  no  attornment  shall  be  necessary,  but  that  any 
payment  of  rent  to  the  lessor,  before  notice  of  an  assignment,  shall  be 
valid  against  the  assignee.  In  those  States  where  an  execution  may 
be  levied  upon  the  rents,  the  officer  may  require  the  tenant  to  attorn, 
or,  if  he  refuses,  deliver  possession  to  the  creditor.  This  provision 
is  made  by  statute  in  Maine.  In  Vermont,  it  is  extended  to  per- 
petual leases  in  fee,  or  for  so  long  time  as  the  lessee  shall  perform  his 
covenants. 

7-i.  In  Virginia,  an  assignee  of  the  reversion  is  placed  in  all  respects, 
with  regard  to  his  claims  upon  the  lessee  and  his  assigns,  upon  the 
footing  of  the  original  lessor.(/>)  A  lessee  and  his  assigns,  also,  have 
all  rights  and  remedies  against  an  assignee  of  the  reversion  which  they 
would  have  against  the  original  lessor,  excepting  a  recovery  in  value 
upon  a  warranty.  This  is  substantially  a  re-enactment  of  the  Statute 
of  lien.  8.  The  same  law  prevails  in  North  Carolina,  New  York,(c) 
Kentucky  and  Delaware ;  and,  it  is  said,  the  provision  of  the  English 
act  is  so  reasonable  and  just  that  it  has  doubtless  been  generally  ap- 
proved and  adopted  as  a  part  of  our  American  law. (4) 

75.  In  Missouri,  attornment  to  a  stranger  is  void  and  shall  not  affect 
the  possession  of  the  landlord,  unless  made  Avith  his  consent,  under  a 
judgment  or  decree,  or  to  a  mortgagee  after  forfeiture.  Similar  provi- 
sion is  made  in  Kentucky,  New  Jersey,  New  York  and  Virginia. 
"Where  execution  has  issued  upon  a  c^onnan^  judgment,  the  attornment 
of  the  tenant  is  void. (5) 

76.  In  Indiana,  if  a  lessor  assign  the  lease  itself,  without  the  rever- 
sion, the  assignee  acquires  no  right  of  action  against  the  lessee,  upon 
covenants  which  run  with  the  land  ;  as,  for  instance,  to  pay  rent,  re- 

(1)  S.  C.  St.  Mar.  1817,  p.  36;  Willard  v.  j  1109;  1  N.  C.  Rev.  St.  259;  1  X.  T.  Rev. 
Tillman,  19  Wend.  358.     See  cli.  15.  St.  747-8 :  Dela.  St.  1829,  370  ;  4  Kent.  119  ; 

(2)  Stone  v.  Knight,  23  Pick.  95.  Willard  v.  Tillman,  2   HiiJ,  274;    Dela.  Rev. 


(3)  Stone  v.  Patterson,  19  Pick.  476. 

(4)  Anth.  Sliep.  244;   1  Ky.  Rev.  L.  444; 
Aik.  Dig.  93;  1   Smith,  351;' Verm.  L.  sec. 


Sts.  421. 

(5)  Misso.  St.  377  ;   1  Ky.  Rev.  L.  444;   1 
N.  Y.  Rev.   St.  744 ;    1   Vir.    Rev.  C.   159 ; 


326,  1835,  9-10;    lb.  476;  2    Ky.  Rev.   L.    Hoskins  i;.  Helm,  4  Litt.  311 


(a)  A  purchased  froTi  B  lands  which  a  few  days  before  B  liad  leased  to  C  for  three  years, 
C  being  in  possession,  with  the  right  of  cutting  all  the  timber  on  the  land ;  taking  note.s 
for  the  rent.  Held,  the  lease  was  valid  against  A,  but  that  ho  mfght  claim  payment  of  the 
notes,  unless  they  had  been  bona  fide  transferred  to  a  third  person,  in  which  case,  he 
would  have  a  claim  for  the  amount  of  them  against  B.    Beebe  v.  Coleman,  8  Paige,  392. 

(h)  In  the  same  State,  in  case  of  partition,  a  lessee  shall  hold  of  the  party  to  whom  his 
portion  of  the  divided  premises  is  assigned.     Vir.  Code,  525. 

(r)  The  provision  applies  to  grants  in  fee,  reserving  rent 


192 


LEASE. 


[CHAP.  XV. 


pair,  &c.  But  in  New  York  it  is  held,  that  although  in  such  case 
there  is  no  privity  between  the  assignee  and  the  lessee,  yet  the  former 
may  sue  in  his  own  name  for  subsequent  rent.  More  especially  where 
his  title  has  been  recognized  by  payment  of  rent.(l)(a) 

77.  If  a  tenant  conveys  or  devises  generally,  his  whole  interest  will 
pass.(2) 

78.  Tenant  for  years,  coming  under  the  denomination  of  ajMrf.icuIar 
tenant,  forfeits  his  estate,  by  attempting  to  convey  a  greater  interest  than 
he  has,  if  freehold.  But  not  by  attempting  to  convey  a  longer  term  ;  for 
the  latter  is  a  mere  contract,  and  has  no  effect  upon  the  reversioner  or 
remainder-man.  If  a  husband  forfeits  a  term  held  in  jure  uxoris,  the 
forfeiture  binds  the  wife,  because  he  would  have  power  to  dispose  of 
it.(3)(i) 


CHAPTER  XV, 


LEASE. 


1-2.  Definition. 

3.  Form. 

5.  Presumption  of. 

6.  Words  necessary : 

or  a  lease. 

20.  Whether  a  lease  or  an  agency. 

26.  "  "  partnership. 

24.  Contract  upon  shares. 

25.  Lease  in  some  of  the  U.  States. 

27.  Acceptance  of  lease. 

28.  Commencement  and  termination ; 

and  "day  of  the  date." 

32.  "  Lease,"  import  of  the  word. 

35.  In  the  alternative. 


whether  a  contract 


'date" 


37.  Conditional, 

40.  Who  may  lease — tenants  in  tail. 

42.  Husband  and  wife. 

45.  Tenant  for  life. 

46.  Guardian. 

50.  Executor  and  heir. 
52.  Joint  tenants,  &c. 
Infant. 
Avoiding  or  forfeiture   of  lease,   and 

what  will  be  a  confirmation. 
Covenants. 
Renewal. 
82.  Estoppel. 
101.  License. 


55. 
56. 


71. 

78. 


1.  In  immediate  connection  with  Estate  for  Years,  the  subject  treated 
in  the  last  chapter,  it  seems  proper  to  consider  that  particular  form  of 
transfer  or  assurance,  called  lease,  by  which  this  estate  is  created. 


(1)  Allen  V.  Wooley,  1  Black.  (Ind.)  149 ; 
Willard  v.  Tillman,  2  Hill,  274  ;  Moftat  v. 
Smith,  4  Comst.  126. 


(2)  Jackson  v.  Yan  Hoesen,  4  Cow.  325 ; 
Co.  Lit.  42  a,  n.  9. 

(3)  Co.  Lit.  251  b;  Eastcourt  v.  Weeks,  1 
Salk.  187  :   1  Rolle  Abr.  851. 


(a)  The  assignment  of  the  rent,  without  the  reversion,  gives  the  assignee  a  right  to  sue  in 
his  own  name  for  rent  subsequently  accruing.  Kendall  v.  Garland,  5  Cush.  74.  A  suit 
against  a  lessee,  to  recover  possession  on  account  of  the  non-payment  of  rent,  &c.,  is  properly 
brought  by  the  lessor  in  his  own  name,  although  he  has  assigned  the  future  rent.  Cham- 
berlin  v.  Brown,  2  Doug.  120.  Where  a  lessor  assigns  the  reversion,  the  assignee's  right 
to  the  whole  rent  for  the  current  quarter  cannot  be  controlled,  by  a  contemporaneous  ver- 
bal agreement  to  divide  it  between  him  and  the  assignor.     Flinn  v.  Calow.  1  Man.  &  G.,  589. 

A,  by  virtue  of  a  levy,  acquired  an  estate  in  certain  land,  and  leased  the  same  for  one 
year,  for  a  rent  payable  quarter-yearly,  the  lease  to  terminate  if  the  premises  should  be  re- 
deemed in  that  time.  A  assigned  the  lease,  and  the  land  was  redeemed  from  the  levy  at 
the  end  of  six  months,  the  lessee  having  paid  three  quarters'  rent  to  the  assignee  of  the 
lease.  Held,  that  A  was  not  entitled  to  recover  of  the  assignee  the  amount  of  the  rent  re- 
ceived by  him  for  the  third  quarter.     Southard  v.  Parker,  26  Maine,  214. 

{b)  Any  disaffirmance  of  the  landlord's  title,  by  the  lessee,  operates  as  a  forfeiture,  and 
makes  the  latter  a  trespasser.     Newman  v.  Rutter,  8  Watts,  51. 


CHAP.  XV.]  LEASE.  193 

2.  A  lease  is  a  contract  for  the  possession  and  profits  of  lands  and 
tenements  on  the  one  side,  and  a  recompense  of  rent  or  other  income 
on  tlie  other ;  or  a  conveyance  of  hinds,  &c.,  to  one  for  life,  for  years, 
or  at  will,  in  consideration  of  a  rent  or  other  recompcnsc.(l)(a) 

3.  With  regard  to  the  form  of  a  lease,  it  has  been  remarked, (2)  that 
in  this  country  very  great  ignorance  prevails,  as  to  the"  legal  effect  of 
the  covenants  contained  therein,  owing  to  the  general  use  of  printed 
form.s,  or  copies  from  books  of  forms,  or  from  some  old  instrument  in 
print. 

4.  A  lease  for  years,  must,  in  general,  be  in  writing,  parol  leases 
passing  only  an  estate  at  will. (6)  Leases  are  usually  seafef/,  as  well  as 
signed  ;  and  Mr.  Dane  suggests,  that  where,  by  statute,  as  is  generally 
the  case,  leases  for  more  than  a  certain  length  of  time  are  required  to 
be  recorded,  it  is  to  be  implied  that  they  must  be  under  seal.  But,  or- 
dinaril}^,  no  seal  is  necessary  to  the  validity  of  a  lease.(8)  In  Dela- 
ware, uo  lease  shall  operate  for  a  longer  term  than  one  year,  unless 
made  by  deed.  In  Virginia  and  Kentucky,  a  conveyance  for  more 
than  five  years,  in  Vermont  and  Rhode  Island,  for  more  than  one  year, 
in  Maryland,  Michigan,  New  Hampshire,  Maine  and  Massachusetts, (c) 

(1)  4  Cruise,  51.  See  4  Ad.  &  Ell.  N.  367  ;  i  (3)  4  Dane,  126  ;  Hunt  v.  Hazleton,  5  N.  H. 
U.  S.  V.  Gratiot,  14  Pet.  526.  216  ;  Kinzie  v.  Trustees,  &c.,  2  Scam.   188. 

(2)  Per  Parker,  Ch.  J.,*  16  Mass.  239.         1  See  University  &c.,  v  Joslyn,  21  Verra.  62. 

*  Tlie  same  learned  judge  remarks,  that  the  printed  form  of  lease  sold  at  the  shops  was 
originally  drawn  up  by  some  unskilful  person,  and  ought  to  be  discontinued.  Brewer  v. 
Knapp,  1  Pick.  335. 

(a)  There  may  be  a  lease,  without  any  reservation  of  rent.  Failing  v.  Scheuck,  3  Hill, 
344;  Hunt  v.  Comstock,  15  Wend.  667.  If  payment  of  rent  is  the  only  proof  offered  of  a 
tenancy,  it  may  be  rebutted  by  otlier  evidence.  Doe  v.  -^Francis,  2  Carr.  &  K.  57.  Mere 
participation  in  profits,  with  a  joint  occupation,  does  not  amount  to  a  tenancy  ;  as  where  a 
person  contracted  with  a  hotel  company,  that  he  should  reside  in  the  hotel,  free  of  charge 
for  board,  conduct  and  have  the  exclusive  management  of  it,  and,  at  the  end  of  the  term, 
the  furniture  be  restored  to  the  company.     State  v.  Page,  1  Spear,  408. 

A  grant  of  francliises,  for  a  limited  time,  after  which  they  revert  to  the  State,  is  not  a  lease. 
Bridge  &c.  v.  The  State,  1  New  J«'sey,  384.  Lease  to  A.  Annexed  to  the  lease,  was 
an  undertaking  signed  by  B  and  C,  and  sealed  with  one  seal  opposite  the  name  of  B,  in  the 
following  words :  "  In  consideration  of  one  dollar  in  hand  to  me  paid  by  A,  I  liereby  cove- 
nant and  af^ree  to  become  surety  for  the  faithful  performance  of  said  .^'s  covenant,  as  expressed 
in  the  aforesaid  lease."  In  an  action  of  covenant  upon  this  instrument  by  the  lessor  against 
B  and  C ;  held,  although  it  did  not  expressly  appear  to  whom  the  covenant  was  made,  yet, 
reference  being  made  therein  to  the  lease,  both  instruments  must  bo  read  together,  to  as- 
certain the  contract ;  that,  taken  together,  they  were  equivalent  to  an  express  covenant  to 
the  plaintiff;  tiiat,  even  if  tliis  were  not  tlie  rule,  the  fact  of  executing  the  covenant  under 
the  plaintiff's  lease,  and  delivering  it  to  tlie  plaintiif,  would  enable  her  to  recover  thereon  ; 
that  the  consideration  mentioned  in  the  writing  was  suflQcient  to  make  the  covenant  valid, 
on  tiie  ground  of  mutuality  ;  that  tlio  obligation  of  the  defendants  was  joint  and  several; 
that  they  were  both  jointly  liable  in  covenant,  although  there  was  but  one  seal,  and  that 
was  opposite  the  signature  of  the  first  signer  ;  and  that,  the  declaration  averring  the  cove- 
nant declared  on  to  be  "sealed  with  the  seals  of  the  said  defendants,"  and  the  truili  of  that 
averment  being  admitted  by  the  demurrer,  the  court  must  regard  the  seal  as  affixed  by 
both  parties.  Van  Alstyne  v.  Van  Slyck,  10  Barb.  383.  See  McLaren  v.  "Watson,  19  Wend. 
567,  26,  4-25. 

(b)  See  Estate  at  Will.  "Wiiether  certain  premises  are  parcel  of  the  premises  demised,  if 
not  ascertained  by  the  written  contract,  is  always  a  question  open  to  extrinsic  evidence. 
Crawford  v.  Morris,  5  Gratt.  90.  But  a  written  agreement  to  pay  a  certain  rent,  cannot  be 
varied  by  parol  evidence  of  a  subsequent  verbal  contract  for  a  smaller  sum,  aial  the  actual 
payment  tiiereof.     Crowley  v.  Vittey,  9  Eng.  L.  &  Equ.  501. 

(c)  In  Tennesse,  an  agent  may  lease  for  seven  years,  though  his  authority  is  not  in  wri- 
ting.    Johnson  v.  Somers,  1  Humph.  268. 

A  recent  English  statute,  (7  &  8  Vict.,  c.  76,  sec.  4,)  provides,  that  all  leases  must  bo  by 

Vol.  I.  13 


194 


LEASE. 


[CHAP.  XV. 


for  more  than  seven  years,  is  invalid,  unless  sealed  and  recorded.  In 
Vermont,  acknoivledged  and  recorded.  Between  the  parties,  recording, 
it  seems,  is  unnecessary.  In  Indiana,  leases  for  more  than  three  years, 
to  be  valid  against  third  persons,  must  be  recorded.  In  Connecticut, 
leases  for  more  than  one  year  are  good  only  against  the  lessor  and  his 
heirs,  unless  attested  by  two  witnesses,  acknowledged  and  recorded. 
In  Ohio,  an  unsealed  writing  is  good,  as  a  lease,  after  entry  and  enjoy- 
ment. Before,  it  is  only  a  contract.(l)  In  North  Carolina,  no  regis- 
tration is  necessary. 

4  a.  A  statute  provided,  that  "  no  bargain,  sale,  mortgage  or  other 
conveyance  of  houses  and  lands,  shall  be  good,  &c.,  against  any  other 
person  but  the  grantor,  &c.,  unless  the  deed,  &c.,  be  acknowledged  and 
recorded,"  &c.  Held,  the  act  did  not  apply  to  a  lease  for  years  of  land 
and  a  right  of  way.(2) 

5.  Leases  may  be  presumed  from  long  possession,  not  otherwise  to  be 
explained.(3) 

6.  The  words  appropriated  to  this  kind  of  contract,  are  "  demise, 
lease,  and  to  farm  let ;"  but  any  other  expression,  indicating  an  intent 
on  the  one  side  to  quit,  and  on  the  other  to  take,  possession  for  a  given 
time,  is  sufficient  to  constitute  a  lease  ;  more  especially  where  there  is 
a  certainty  as  to  the  time  when  the  term  shall  commence  and  terminate, 
and  the  amount  of  rent  to  be  paid.  So,  although  in  the  form  of  a 
license,  covenant  or  agreement.(a)  It  is  enough,  if  there  be  express 
words  of  present  demise,  or  equivocal  words  accompanied  with  others, 
to  show  the  intention  of  the  parties  not  to  have  a  future  lease,  espe- 
cially if  possession  be  taken :  and  their  intention  may  be  gathered, 
not  only  from  the  instrument,  but  from  their  concurrent  or  subsequent 
acts.(4) 

7.  "It  is  covenanted  and  agreed  between  A  and  B,  in  these  words  : 
First,  that  A  doth  let  said  lands  for  live  years,  to  begin  at  the  M.  feast 
next  ensuing ;  provided,  that  B  should  pay  A  annually  during  the  term 
£120.     Also  the  said  parties  do  covenant,  that  a  lease  shall  be  made 


(1)  1  Md.  L.  26;  Del.  St.  1829,  368  ;  Ind. 
Eev.  St.  232;  Yirg.  Code,  507;  Conn.  St. 
350:  1  Ky.  Rev.  L.  432;  1  Va.  Rev.  C.  156; 
N.  H.  Rev.  St.  243  ;  Taylor  v.  Bailey,  Wright, 
646;  Ma.ss.  Rev.  St.  407;  Andersons.  Critch- 
er,  11  Gill  &  J.  450;  Barney  v.  Keith,  4 
Wend.  502;  Me.  Rev.  St.  374;  Chapman  v. 
Bluck,  4  Bing.  N.  187  ;  Verm.  Rev.  St.  312; 
Tiaylor  L.  &  T.  19  ;  Rurnett  v.  Thompson,  3 
N.  C.  379,  Doe  v.  Keiv,  3  Bing.  181. 

(2)  Stone  v.  Stone,  1  R.  I.  425. 

(3)  4  Pet.  1. 

(4)  Co.  Lit.   45  b;    Bac.   Abr.  Lease,  K; 


"Wright  V.  Trevesant,  3  C.  &  P.  441 ;  Moore 
V.  Miller,  8  Barr,  272;  Jenkins  w.  Eldredge,  3 
Story,  325;  Moshier  u  Reding,  3  Fairf;478; 
Merrick  v.  Lewis,  3  MeC.  211 ;  Rights.  Proc- 
tor, 4  Burr.  2208;  Tooker  v.  Squier,  1  Rolles 
Abr.  817  ;  Whitlock  v.  Horton,  Cro.  Jac.  91; 
Hall  V.  Seabright,  1  Mod.  14 ;  Doe  v.  Ash- 
burtfer,  5  T.  R.  163;  Pineo  v.  Judson,  6  Bing. 
206;  Chipman  v.  Bluck,  1  Arn.  27;  Doe  v. 
Benjamin,  9  Ad.  &  Ell.  644 ;  Alderman  v. 
Neate,  4,  704;  Gushing  v.  Mills,  6  Mann.  & 
G.  173. 


deed,  but  any  written  agreement  to  let  shall  be  valid,  and  a  party  occupying  under  such 
agreement  may,  from  paym'ent  of  rent  or  other  circumstances,  be  construed  as  a  tenant 
from  year  to  year. 

(a)  On  the  other  hand,  the  word  let  is  a  comprehensive  term,  which  does  not  necessarily 
pass  a  mere  term  for  years,  but  may  convey  the  fee.  "A  hath  let  to  B,  his  legal  heirs  and 
repreputatives,  at  the  rate  o(  $15  per  acre,  to  be  p:iid  by  B,  or  Jm  legal  heirs,  annually  to  A, 
his  heirs  and  assigns."  This  passes^the  fee,  subject  to  a  ground-rent  in  fee.  Krider  v.  Laf' 
feri}-,  1  Whart.  303. 

Leases  are  to  be  construed  like  other  contracts,  so  far  as  intention  and  custom  are  to  goy 
em  in  their  construction.     Iddings  v.  Na^'le,  2  Watts  &  S.  24. 


CHAP.  XV.] 


LEASE. 


195 


and  sealed,  according  to  the  effect  of  those  articles,  before  the  next  feast 
of  S."  Held,  the  words  "doth  let,"  made  this  a  present  lease,  and  that 
the  following  expressions  of  prospective  import  merely  contemplated 
the  making  of  further  assurance.(l)(a) 

8.  By  articles  between  A  and  B,  .A  covenanted,  granted  and  agreed, 
that  B  should  have  and  enjoy  the  land  for  six  years,  ki-consideration  of 
which,  B  covenanted  to  pay  an  annual  rent  to  A  and  his  heirs.  Ileld, 
a  good  lease.(2) 

9.  A  and  B  agreed  with  C  that  they  would,  with  all  convenient 
speed,  grant  him  a  lease  of,  and  they  did  thereby  set  and  let  to  him 
certain  land,  to  hold  for  21  years,  at  a  certain  rent,  payable  semi- 
annually. The  lease  to  contain  the  usual  covenants,  and  certain  special 
ones,  one  of  which  spoke  of  "  this  demise."  Held,  these  words,  with 
the  words  set  and  let,  made  this  a  present  lease,  with  an  agreement  for 
a  more  formal  one  thereafter.(3) 

10.  A  hath  let,  and  by  these  presents  doth  demise,  &c.,  unto  B  for 
21  years,  to  commence  after  A  hath  recovered  said  lands  from  0. 
Leases,  with  powers  of  distress  and  clauses  for  re-entry,  &c.,  to  be 
drawn  and  signed  at  the  request  of  either  party,  as  soon  as  A  recovers, 
&c.     Held,  a  present  lease.(4:) 

11.  A  bargained,  covenanted  and  agreed  with  B,  by  articles,  that  he 
would  lease  to  B  a  farm,  for  six  years  from  April  1, 1807,  on  condition 
B  should  pay  $250  on  April  1,  each  year  during  the  term.  B  cove- 
nanted to  pay  accordingly.  Before  April  1,  1807,  A  sold  the  farm. 
Held,  without  paying  $250,  B  had  a  vested  estate  as  lessee,  and  might 
maintain  ejectment.(5) 

12.  A  and  B  entered  into  a  sealed  contract,  which,  after  reciting  a 
covenant  by  A  to  finish  a  certain  building  then  erected,  for  the  manu- 
facture of  cotton,  furnish  water  power  and  machinery  therefor,  by  a 
certain  day,  and  keep  the  machinery  in  repair  for  one  month,  pro- 
ceeded thus — "  And  A  docs  hereby  lease  said  building  to  B  for  the 
term  of  10  years,''  from  the  day  before  named,  but  B  is  to  have  the  use 
of  the  building,  &c.,  after  they  are  completed,  free  of  rent,  from  a  day 
prior  to  the  date  of  the  instrument,  until  they  shall  be  ready  for  opera- 
tion ;  "  and  B  shall  also  use  said  building  free  of  rent,  for  the  purpose 
of  storing  cotton  and  machinery  and  making  repairs,  from  the  date  of 
this  instrument ;"  and  B  covenants  to  keep  the  running  machiner}^  in 
repair  after  the  expiration  of  one  month.  B  took  possession  under  the 
contract.  Held,  the  instrument  created  a  present  demise,  to  commence 
infuturo,  not  merely  an  agreement  for  a  lease. (6) 

13.  On  the  other  hand,  it  has  been  repeatedly  held,  that  notwith- 
standing words  of  present  demise,  an  instrument  shall  not  operate  as 


(1)  Harrington  v.  "Wise,  Cro.  Eliz.  48G ; 
Jackson  v.  Keisselbrach,  1 0  John.  436;  Poole 
V.  Bentley,  12  E.  168;  Hallett  v.  Wylie,  3  John. 
44. 

(2)  Drake  v.  Munday,  Cro.  Car.  207  ;  Tis- 
dale  V.  Essex,  Hob.  34. 


(3)  Baxter  v.  Browne,  2  Black.  R.  918. 

(4)  Barry  v.  Nugent,  5  T.  R.  165. 

(5)  Thornton  v.  Payne,  5  Jolin.  74. 

(6)  Bacon  v.  Bowdoin,  22  Pick.  401. 


(a)  So,  where  an  instrument  contained  an  agreement  for  a  subsequent  lease  and  demise, 
when  a  fence,  &c.,  siiould  be  tinislied,  but  also  a  clause  for  re-entry,  upon  breach  of  cove- 
naiii;  and  the  proposed  tenant  entered  and  paid  rent;  lield,  a  lease,  not  a  mere  agreement 
for  one.     Alexander  v.  Bonuin,  6  Scott,  611. 


196 


LEASE. 


[CHAP.  XT. 


an  actual  lease,  if  there  is  a  manifest  intention,  appearing  on  the  whole 
paper,  that  it  should  operate  other\vise.(a)  This  intention  may  be  in- 
ferred from  strong  circumstances  of  inconvenience,  connected  with  a 
different  construction  ;  such  as  a  forfeiture.  Thus,  A  and  B  entered 
into  t'.ie  following  articles  :  "  A  doth  demise,  &c.,  to  B,  to  have  it  for 
40  years,"  with  a  rent  reserved,  and  a  clause  of  distress.  A  memoran- 
dum was  afterwards  written  in  the  same  paper,  that  these  articles  were 
to  be  ordered  by  counsel  of  both  parties,  according  to  due  form  of  law. 
A  lease  was  afterwards  drawn  by  counsel,  but  not  sealed,  the  parties 
differing  as  io  fire-hote.     Held,  no  lease.(l) 

13  a.  An  instrument  contained  words  of  present  demise,  but  also  an 
agreement  by  the  owner  to  make  alterations  and  improvements,  and  by 
the  other  party,  to  take  a  lease  when  they  should  be  made.  Held,  a 
mere  agreement  for  a  lease.(2) 

13  h.  Agreement  between  A  and  B,  that  A  should  enjoy  the  mills, 
&c,,  and  that  B  would  give  him  a  lease  for  a  certain  time,  and  at  a  cer- 
tain rent,  and  purchase  an  additional  piece  of  land  and  add  it  to  that 
demised.     Held,  a  mere  agreement.(3) 

13  c.  A  agreed  "  to  let  premises  to  B,  on  lease,  with  a  purchasing 
clause,  for  21  years,  at  £63  per  year;"  B  to  enter  any  time  on  or  be- 
fore a  certain  day.  Held,  a  mere  agreement,  there  being  no  words  of 
demise,  the  commencement  of  the  tenancy  being  left  uncertain,  and  the 
words  as  to  purchasing  showing  that  the  letting  was  to  be  by  a  par- 
ticular instrument,  containing  such  lease.(4) 

13  d.  An  agreement  provided,  that  out  of  the  rent  mentioned,  a  pro- 
portionate abatement  should  be  made,  in  regard  to  certain  excepted 
premises,  and  the  tenant  hold  under  all  usual  covenants,  &c.  Held,  not 
a  lease,  because  it  might  be  disputed  what  are  u^ual  covenants.(5) 

13  e.  The  defendant  entered  into  a  contract  with  A,  in  Avriting,  not 
under  seal,  "to  let"  to  A  a  certain  farm,  to  commence  on  the  first  of 
April,  1842,  and  continue  from  year  to  year  for  five  years,  or  so  long 
as  the  parties  should  agree  and  be  satisfied,  reserving  to  either  party 
the  right  to  terminate  the  contract  by  giving  one  month's  notice  in 
writing ;  the  produce;  of  the  farm  "  to  be  equally  divided  by  weight 
or  measure,  between  the  parties."  Held,  although  this  gave  A  an  in- 
terest in  the  land,  and  a  right  to  occupy  it  without  molestation  from  the 
defendant,  while  he  continued  in  the  performance  of  the  contract,  yet 


(1)  Sturgion  v.  Painter,  Noy  R.  ]28; 
Tenny  v.  Childs,  2  M.  &  S.  225  ;  Pleasants  v. 
Higham,  1  Roll.  Abr.  848.  See  People  i;. 
Gillis,  24  Wend.  201 :  Jones  v.  Reynolds,  1 
Ad.  &  Ell.  (N.  S.)  506;  Rawson  v.  Eicke,  7 
Ad.  &  Ell.  451 ;  BickDell  v.  Hood,  5  Mees.  & 
W.  104;  Chapman  v.  Towner,  6,  100;  Bra- 
shier  V.  Jackson,  lb.  549  ;  Helser  v.  Pott,  3 
Barr,  179 ;  Jackson  v.  MoncriefJ  5  Wend.  26; 


V.  Myers,  3  John.  388 ;    Tempest  v. 

Rawling,  13  E.  10  ;  Fenner  v.  Hepburn,  2  Y. 
&  C.  159. 

(2)  Jackson  v.  Delacroix,  2  "Wend.  433. 

(3)  5  T.  R.  163. 

(4)  Denk  v.  Hunter,  5  B.  &  A.  322,  1042. 

(5)  Morgan  v.  Bissell,  3  Taun.  65.    But  see 
Doe  V.  Benjamin,  1  Per.  &  Dav.  440. 


[a)  Where  the  instrument  referred  to  a  parol  agreement,  and  did  not  state  the  commence- 
ment or  duration  of  the  tenancy;  held,  a  mere  agreement,  not  a  lease.  Gore  v.  Lloyd,  12 
Mees.  &  W  463.  Such  agreement  may  operate  as  a  license  to  enter,  and  give  a  right' to 
c'aim  specific  performance  or  damages.  Price  v.  Williams,  1  Mees.  &  W.  6.  An  express 
proviso,  that  the  instrument  shall  operate  only  as  an  agreement,  not  a  lease,  will  be  carried 
into  effect,  though  other  clauses  indicate  a  different  intent.  Perring  v.  Brooke,  1  M.  &  R. 
510.     But  not  the  mere  use  of  the  word  agreement.     John  v.  Jenkins,  1  Cr.  &  M.  233. 


CnAP.  XV.]  LEASE.  197 

it  did  not  constitute  a  lease,  but  A  was  a  quasi  tenant  at  will,  while  the 
contract  continued  in  force,  and  the  defendant  and  A  were  tenants  in 
common  of  the  growing  crops,  and  of  the  produce  of  the  farm  before 
severance.(l)(a)  Ileld,  also,  the  interest  of  A  in  the  growing  crops, 
before  severance,  was  assignable,  and  the  plaintiff,  having  received  from 
A  a  legal  assignment  of  his  interest,  beeame  tenant-i-fi  common  with 
the  defendant,  in  place  of  A,  and  might  sustain  an  action  of  accoant 
against  the  dtfendiint,  to  recover  his  just  proportion. 

14.  A  doth  hereby  agree  to  let,  and  B  agrees  to  rent  and  take,  &c.,  all 
his  estate,  &c.  It  is  agreed  that  said  B  shall  enter  immediately,  but 
not  commence  payment  of  rent  till,  &c.  It  is  further  agreed  that  leases, 
with  the  usual  covenants,  shall  be  made  on  or  before,  &c.  Held,  no 
lease ;  but  only  an  agreement  for  immediate  possession,  till  a  lease  could 
be  drawn. (2) 

15.  A  certain  instrument  recited  that  A,  if  he  should  have  a  title  to 
certain  land  upon  B's  death,  would  immediately  lease  it  to  C,  and  de- 
clared that  he  did  thereby  agree  to  demise  the  same,  with  a  subsequent 
covenant  to  procure  a  license,  &c.,  to  do  it.  Ileld,  only  a  contract  for 
a  lease.(3)(&) 

16.  A  agreed  to  let  her  house  to  B  during  her  life,  supposing  it  to  be 
occupied  by  B,  or  a  tenant  agreeable  to  A,  and  a  clause  was  to  be  added 
in  the  lease,  to  give  A's  son  an  option  to  possess  the  house  when  of  age. 
Held,  only  a  contract,  not  a  leasc.(4) 

17.  A  town,  by  vote,  directs  that  a  lease  of  certain  land  may  be  made, 
"  which  shall  vest  in  the  lessee  all  the  right  of  said  town  to  enter  upon 
said  quarries  and  remove  stones,  and  do  any  other  lawful  act  for  and 
in  behalf  of  said  town,  in  relation  thereto."  This  vote,  and  a  lease 
made  in  pursuance  of  it,  give  to  the  lessee  a  perfect  right  of  entry  and 
possession,  with  all  the  powers  of  the  town  in  relation  to  the  subject. 
The  lessee  becomes  a  legal  owner,  and  may  maintain  trespass  either 
against  a  stranger  or  the  agent  of  the  town.  But  the  mere  vote  of  a 
town,  that  their  agent  may  let  certain  land  for  a  year,  is  no  lease,  and, 
if  he  let  without  writing,  the  lessee  has  only  an  estate  at  will. (5) 

18.  "  It  is  hereby  agreed  between  A  and  B,  that  A  will  let  to  B  the 
use  of  the  county  house  in  L,  from  December,  1817,  to  April,  1818, 
and  B  agrees  to  pay  A  therefor  $250,  provided  a  majority  of  the  county 
court  agree  thereto.  November  18,  1817,"  Held,  no  lease,  but  an 
agreement  upon  condition  precedent;  and,  in  assumpsit  by  A  for  the 
rent,  B  was  allowed  to  prove  by  parol  that  he  occupied  as  tenant  of  the 
county.(6) 

19.  Articles  of  agreement,  between  A  and  B  contained  the  following 
clause  :  "  that  the  said  mills,  &c.,  he  shall  enjoy,  and  I  engage  to  give 

(1)  Aiken  v.  Smith,  21  Vt.  172.  i      (4)  Doe  v.  Smith,  6  E.  530. 

(2)  Goodtitle  v.  "Way,  1  T.  R.  735.  j      (5)  Todd  v.  Hall,  10  Conn.  559-60;  Iling- 

(3)  Doe  V.  Clare,  2  T.  R.  739.    See  10  John.  1  ham  v.  Sprague,  15  Pick.  102. 
336 ;    4  Dane,  132.  | '    (6)  Buell  v.  Cook.  4  Conn.  238. 


(a)  So,  though  tlie  defendant,  subsequent  to  the  assignment,  had  caused  an  undivided 
hair  of  the  produce  to  be  attached  and  sold  on  execution,  as  the  property  of  A,  and  him- 
self become  the  purchaser.  lb.  [In  this  case,  the  case  of  Tlurd  v.  Darling,  14  Tt.  214, 
16  Vt.  377,  was  examined,  and  the  correctness  of  the  decision  was  questioned,  by  Ben- 
nett, J] 

(6)  The  two  last  cases  turned  in  part  upon  the  point,  that  the  proper  stamp  was  wanting. 


198  LEASE.  [CHAP.  XV. 

him  a  lease  in  for  31  years  from,  &c.,  at  the  rent,  &c.,  and  that  I  will  pur- 
chase one  yard  in  breadth  to  be  laid  to  the  race,  &c.  And  if  it  be 
bought,  and  the  purchase  is  more  than  £200  per  acre,  said  B  to  pay" 
the  additional  cost.  Held,  the  words  he  shall  enjoy ^  and  I  engage  to  give 
him  a  lease,  showed  an  unequivocal  intention  for  a  future  lease;  and  this 
construction  was  confirmed  by  the  consideration,  that  A  was  to  obtain 
other  land  to  be  laid  to  the  mill,  before  the  lease  should  be  made.  If 
B  should  seek  to  enforce  the  instrument,  as  a  contract,  in  Chancery,  he 
would  not  be  turned  round  with  the  objection,  that  he  had  already  a 
legal,  executed  estate,  but  a  lease  would  be  decreed  to  be  made.(l)(a) 

19  a.  The  question  may  also  arise,  whether  a  particular  transaction 
constitutes  a  lease  or  a  sale. 

19  h.  Sale  of  a  house  by  written  agreement,  for  a  certain  sum,  and 
in  the  meantime  a  weekly  rent  reserved.  The  purchaser  afterwards 
married  the  defendant,  the  purchase-money  was  paid,  and  the  seller 
died.  The  executors  proceed  in  the  county  court  against  the  defend- 
ant to  recover  possession.  Held,  on  application  for  a  prohibition,  that 
the  relation  of  landlord  and  tenant  did  not  exist,  and  a  prohibition  was 
granted.(2)(/v) 

20.  So,  the  question  may  arise,  whether  an  occupant  of  land  is  a 
lessee,  or  merely  a  servant,  of  the  owner. 

21.  The  defendants,  owning  a  manufactory  and  a  pond  above  it, 
and  having  purchased  of  the  plaintiif  the  right  to  draw  off  water  from 
the  pond  through  his  land,  made  a  written  contract  with  one  B,  by 
which  B  was  to  run  the  defendants'  mill  one  year,  and  manufacture  for 
them  at  a  certain  price  cotton  furnished  by  them,  and  to  keep  the  mill 
in  good  running  order  at  his  own  expense,  except  the  main  gearing, 
which  was  to  be  repaired  by  the  defendants,  if  necessar3^  No  rent  was 
to  be  charged  by  the  defendants,  and  they  were  not  to  be  called  on  for 
any  expense,  unless  the  main  gearing  should  fail  or  some  injury  arise 
to  the  dam.  Six  or  seven  acres  of  land,  where  the  factor}'-  stood,  with 
the  flictory  houses,  blacksmith  shop,  &c.,  were  to  be  used  by  B.  In  an 
action  against  the  defendants  for  an  injury  to  the  plaintiff,  caused  by 

(1)  Doe  V.  Ashburner,  5  T.  R.  163  ;  4  Kent,  f  (2)  Banks  v.  Rebbeck,  5  Eug.  L  &  Equ. 
105,  and  authorities.  1  298. 


(a)  Tlie  question  sometimes  arises,  whether  a  transaction  is  an  actual  assignment,  or  only 
a  contract  for  assignment,  of  a  lease.  The  latter  construction  was  given,  where  money  was 
subsequently  to  be  p'lid,  though  in  the  meantime  the  assignee  was  to  pay  rent,  perform  the 
covenants,  and  indemnify  the  lessee  against  them;  with  a  condition  of  re-entry.  Line  v. 
Stephenson,  7  Scott,  69. 

(&)  The  lessor  of  a  form,  for  three  years,  covenanted  to  furnish  ten  cows  with  hay  suflB- 
cient  to  winter  them,  to  be  kept  for  the  use  rnd  benefit  of  the  lessee  during  the  term;  to 
risk  them  against  all  unavoidable  accidents;  and  to  pay  all  taxes  upon  them.  The  lessee 
covenanted  to  deliver  to  the  lessor,  at  the  expiration  of  the  three  years,  the  same  ten  cows, 
or  others  worth  as  mucli  in  all  respects,  with  hay  sufBcient  to  winter  them  through.  Held, 
this  did  not  pass  the  absolute  property  in  the  cows  to  the  lessee,  but  was  a  lease  merely, 
with  the  ri<;ht  in  the  lessee,  in  case  any  of  the  cows  were  lost  by  accidents,  not  unavoidable, 
to  return  other  cows  of  equal  value.     Smith  v.  Niles,  20  Vt.  315. 

In  February,  1842,  A  a,t!;reed  with  B  to  sell  him  a  farm  for  a  certain  sum,  $375  to  be  paid, 
part  in  Juno  following,  and  the  balance  the  next  April,  whether  B  should  decide  to  take  a 
deed  or  not.  B  was  to  have  immediate  possession,  and  decide  in  July,  1842,  whether  he 
would  keep  the  premises  under  the  contract.  Held,  the  agreement  was  a  sale,  not  a 
demise,  and  the  $375  not  rent,  for  which  a  distress  could  be  made.  Moulton  v.  Norton,  5 
Barb.  28C. 


CHAP.  XT.] 


LEASE. 


199 


B's  letting  off  the  water  from  the  pond  so  rapidly  as  to  overflow  the 
plaintiff's  land  ;  held,  B  was  a  lessee,  not  a  servant  of  the  defendants, 
and  therefore  they  were  not  liable  to  this  action. (I) 

22.  Agreement  between  A  and  B,  that  B  and  his  wife  should  work 
for  A  one  3'ear,  B  upon  the- farm  of  A,  and  his  wife  in  the  house  con- 
nected therewith.  B  and  his  wife  haviijg  taken  possession,  A  after- 
wards ordered  them  to  quit,  and,  upon  their  refusing,  ejected  them. 
Held,  A  and  B  stood  in  the  relation  of  master  and  servant,  and  an  ac- 
tion of  trespass  did  not  lie  (2)(a) 

22  a.  The  defendant,  owning  a  farm  and  ferry,  leased  them  verbally 
for  a  year,  the  profits  and  proceeds  to  be  equally  divided  between  him 
and  the  lessee,  the  lessee  to  keep  and  manage  the  ferry  at  his  own  ex- 
pense of  labor,  the  defendant  to  put  the  boat  in  good  order  at  the 
commencement  of  navigation,  and  the  expense  of  repairs  to  be  di- 
vided between  the  parties ;  the  lessee  to  pay  the  defendant  half  the  re- 
ceipts weekly  ;  the  lessee  to  conduct  all  his  business  as  such  tenant, 
and  manage  the  said  "  farm  and  premises"  so  leased  to  him,  carefully, 
&c.,  and  allow  no  one  but  a  suitable  man  to  attend  the  ferr}^,  and  be 
responsible  to  the  defendant  for  "  damages  occasioned  by  wilful  mis- 
conduct or  neglect  in  the  management  of  the  said  farm  and  premises, 
and  in  the  management  of  the  ferry,  and  the  scow  and  boat."  Held,  the 
lessee  was  tenant  of  the  defendant,  both  as  to  the  farm  and  ferry,  and  the 
defendant  not  liable  to  a  passenger  in  the  boat,  for  an  injury  caused  by 
the  lessee's  neslicrence  in  the  management  of  the  ferrv.(3) 

23.  A  further  question  might  possibly  arise,  whether  a  lessor,  who 
is  to  receive  for  rent  a  certain  portion  of  the  profits  of  the  land,  does 
not  thereby  become  a  partner  of  the  lessee.  To  guard  against  this  con- 
struction, it  is  provided  in  North  Carolina,  that  a  lessor  of  property  for 
gold  mining  purposes  shall  not  be  held  as  a  partner,  though  he  is  to 
receive  a  sura  uncertain  of  the  proceeds,  or  any  other  consideration 
which  is  uncertain,  but  may  be  made  certain. (4) 

23  a.  Lease  of  a  ferry  for  a  year;  the  lessee  to  take  charge  of  the 
business,  pay  expenses,  and  pay  the  lessor  half  the  gross  receipts. 
Held,  the  parties  were  not  partners,  even  as  to  third  persons.(5) 

24.  A  mere  contract  with  the  owner  of  land,  to  raise  a  crop  vpon 
shares,  does  not  constitute  a  lease.  Thus,  A  agreed  with  B  to  sow  and 
raise  on  B's  land  a  crop  of  wheat,  B  to  find  the  team  and  one  half  of 
the  seed,  and  A  to  do  the  labor  :  the  wheat,  when  harvested,  to  be  put  in 
B's  barn,  threshed  and  divided  between  them.  The  wheat,  while  cut 
and  standing,  was  attached  as  A's.  Held,  A  had  no  lease  of  the  land, 
and  no  exclusive  interest  in  the  wheat,  but  it  belonged  to  the  parties 
jointly.     But  if  A  agree  with  B  to  raise  a  crop  upon  B's  land,  and  pay 


(1)  Fiske  V.  Fraraingham,  Ac,  14  Pick.  491. 
See  Anderson  v.  Nesmith,  7  N.  H.  167. 

(2)  Haj-wood  v.  Miller,  3  Hill,  90. 

(3)  FeltOD  I'.  Deall,  22  Term.  170. 


(4)  1  X.  C.  Rev.  Stat.   426;    Putnam   v. 
Wise,  1  Hill,  234. 

(5)  Heimstreet  v.  Howland,  5  Denio,  68. 


(a)  A,  the  proprietor  of  a  school,  employing  B  as  the  steward,  ic,  assigned  to  him  for 
lodgings  a  house  within  the  curtilage,  but  not  connected  with  A's  dwelling-house,  by  any 
common  covering  or  roof,  and  without  rent.  Held,  it  was  in  law  the  dwelling-house  of  A. 
State  V.  Curtis,  4  Dev.  &  B.  222. 


200  LEASE.  [CHAP.  XT. 

him  oiio-lliird  of  it,  as  rent,  this  is  a  lease,  aiul  A  inaj  have  trover 
against  B  for  taking  the  crop.(l)(a) 

25.  Ill  Dchi\vare,(2)  any  contract  or  consent,  pursuant  to  which  a  ten- 
ant enters  into  or  continues  in  possession  of  lands,  &c.,  under  an  agree- 
ment to  pay  rent,  is  a  demise.  The  term  is  one  year,  unless  the  instru- 
ment specily  a  dilFereut  term,  or  the  property  have  been  usually  let  for 
a  shorter  tinie.(i^) 

2().  AVhcrc  a  writing  is  given  for  a  lease,  though  not  properly  exe- 
cuted as  such,  (as,  in  Connecticut,  by  sealing,  acknowledgment  and  re- 
cording,) it  may  be  used  as  evidence  that  the  defendant  occupied  with 
permission  of  the  plaitnifr.(3) 

27.  Where  a  lease  is  made,  the  general  presumption  is,  that  it  is 
beneficial  to  the  lessee,  and  therefore  accepted  by  him.  But  this  bene- 
fit is  to  be  judged  of,  not  merely  by  the  terms  of  the  lease,  but  by  all 
the  circumstances  of  the  case.  If  the  lessee  has  himself  a  perfect  title 
to  the  land,  and  the  lessor  no  title,  this  is  not  a  beneficial  lease,  and  no 
acceptance  will  be  presumed. (4)(c)     (See  infra,  70.) 

(1)  (4  Kent.  95;)  Bishop  t;.  Doty,  1  Vcrm.j  (2)  Del.  St.  1829,  3G8 ;  Rov.  Sts.  422. 

17;  Hoskins  v.  Ulioadi's,    1    GiTl.    &  J.   206.  (3)  Coniwiill  v.  Iluyt,  7  Conn.  420. 

See  ch.  IG,  .<!ecs.  4-7.     Jackson  v.  Browncll,  1  (4)  Camp  v.  Camp,  5  Conn.  291. 
John.  2G7.                                                            ' 


(cb)  "Wliero  a  transaction  of  this  kind  is  a  mere  contract  for  personal  services,  which  would 
expire  with  the  tiealh  of  llio  party  occupying,  it  is  no  lease.  Maverick  t;.  Lewis,  3  McCord, 
211.  In  Pennsylvania,  landlord  and  cropper  is  a  phrase  familiarly  known  lo  the  law.  Id- 
dings  V.  Naglo,  2  "W.  ami  Serg.  24.  Contract  between  A  ami  B,  that  B  slionki  cultivate 
A's  farm  for  one  season,  and  deliver  him  one-half  ilie  crops,  the  grain  to  bo  threslied  and 
then  divided  ;  and  should  have  the  use  of  a  part  of  the  barn  to  put  his  grain  in.  Held,  be- 
fore a  division,  the  parties  were  tenants  in  common  of  the  crops.  Walker  v.  Fitts,  24  Pick. 
19;  ace.  Putnam  v.  Wise,  1  Hill,  234.  Seo  Chamberlin  v.  Shaw,  18  Pick.  278;  Caswell  T. 
Districh,  15  Wend.  379. 

By  an  indenture.  A,  the  plaintifl',  "demised,  granted  and  to  farm  let"  to  B  and  C  his  farm 
with  the  buildings  thereon,  reserving  for  his  own  use  certain  rooms  and  privileges  in  the 
kitchen,  &c.,  hahendum  for  one  year,  they  covenanting  to  carry  on  the  farm  in  a  husband- 
like manner,  to  furnish  one  cow  and  other  stock,  one-half  the  seed,  &c.,  and  divide  the 
grain,  .tc.,  and  depo.sit  A's  portion  in  his  part  of  the  granary  and  cellar;  and  A  agreeing 
to  supply  certain  farming  implements,  to  bo  kept  in  repair  by  B  and  C;  12  cows,  &e.,  whose 
product  should  bo  equally  divided  ;  the  winter  nuinuro  to  bo  put  on  tiio  land  at  A's  direc- 
tion ;  the  hay  to  all  bo  fed  out  on  the  farm  ;  half  of  the  calves  to  be  reared,  if  suitable  and 
promising  for  that  purpose,  and  tho  other  lialf  killed  fur  veal.  The  hay  and  calves  having 
been  attached  by  creditors  of  B  and  C,  A  brings  an  action  against  the  officer.  Held,  the 
above  agreement  did  not  so  vest  in  B  and  C  tlio  hay  and  calves  to  bo  reared,  produced  on 
the  farm  during  tho  term,  as  to  render  them  liable  to  attachment;  but  tho  olfect  of  it  was, 
that  all  tiie  hay  siiould  be  consumed  on  the  farm,  and  such  calves  kept  on  the  farm  till  the 
term  expired,  when  tho  division  was  to  take  place.     Lewis  v.  Lyman,  22  Pick.  437. 

Lease  of  a  farm,  with  tho  cows  and  sheep  thereupon,  for  five  years,  at  a  certain  annual 
rent,  with  a  provision  that  cows  of  equal  age,  &c.,  should  be  returned  at  the  end  of  the  term, 
and  also  sheep.  Held,  the  cows  and  sheep,  as  also  others  substituted  for  them,  belonged  to 
tho  tenant,  and  might  bo  levied  upon  as  his.  Carpenter  v.  Griffin,  9  Paige,  310.  (See  ch. 
IG,  sec.  4.) 

A  agreed  by  parol  with  B  to  clear  and  sow  B's  land  and  receive  the  crop.  B  sold  the 
land  lo  C.  with  notice  of  this  agreement.  Held,  V,  was  bound  by  it,  and  A  might  enter  to 
take  the  crop.     Davis  v.  Brocklebank,  9X.  II.  73. 

(6)  In  tho  city  of  Now  York,  a  leaeo  not  limited  in  duration  continues  to  tho  first  of  May 
next,  alter  pos.session  taken  ;  and  the  rent  is  payable  at  the  usual  quarter  days  for  payment 
of  rent  in  that  city,  unless  otherwise  expressed.      1  Uev.  Sts.  744. 

(c)  It  has  been  held,  that  a  lessee  may  abandon  his  contract,  if  tho  lessor  refuse  to  give 
possossion  on  the  day  lixed.     Spencer  v.  Burton,  5  Blackf.  67. 


CHAP.  XT.] 


LEASE. 


201 


28.  Every  lease  must  Lave  a  certain  beginning  and  ending.  It  may 
begin  from  a  day  past.  If  made  to  commence  from  an  impossible  date,  as 
the  3  th  of  B'ebruary — or  from  the  end  of  another  lease,  which  does 
not  exist,  or  is  void,  or  misrecited,  it  takes  effect  from  delivery  ;  but  if 
from  an  uncertain  date,  as  where  the  month  is  mentioned,  but  not  the 
year,  it  is  void.(l)  But  it  may  commence  or  end  upon^a  contingency 
which  must  happen,  as  from  the  lessor's  death,  running  to  a  certain 
day.(2) 

29.  So  a  lease  for  21  years,  to  commence  after  the  termination  of  a 
life,  is  good  ;  because  the  commencement,  though  at  first  uncertain,  is 
rendered  certain  by  a  subsequent  event.  So,  A  may  grant  to  B,  that 
when  B  grants  him  a  certain  sum,  he  shall  have  and  occupy  the  land 
for  twenty-one  years ;  and  this  is  a  good  lease  to  commence  on  pay- 
ment of  such  sum.(3) 

30.  As  to  the  legal  import  of  the  words  "  from  the  date,"  "  from  the 
day  of  the  date,"  &c.,  it  was  the  old  rule,  that  either  expression  would 
make  the  lease  to  commence  the  day  after  the  date.  But  the  modern  doc- 
trine is,  that  there  is  no  general  rule  on  the  subject ;  that,  in  reckon- 
ing from  an  act  or  event,  the  day  is  to  be  inclusive  or  exclusive,  ac- 
cording to  the  reason  of  the  thing  and  the  circumstances  of  the  case  ; 
but  ordinarily,  the  day  is  inclusive,  the  words  being  used,  not  by  way 
of  computation,  but  of  passing  an  interest,  and  because  this  construc- 
tion is  most  favorable  to  the  lessee.(4)  In  several  cases,  the  rule  is  laid 
down,  that  where  the  computation  is  from  an  act  done,  the  day  is  in- 
cluded; as  where  it  is  "from  the  making  hereof,"  or  ''from  hence- 
forth."(o) 

31.  Where  the  expression  is  "from  the  date,"  the  rule  seems  to  be, 
that  if  a  present  interest  is  to  commence  from  the  date,  the  day  of  the 
date  is  included ;  but  if  merely  used  to  fix  a  terminus,  from  which  to 
compute  time,  the  day  is  excluded.(6)(a) 

32.  The  word  "  lease,"  as  well  as  "  term,"  seems  to  be  of  somewhat 
equivocal  import.  {Supjra,  ch.  14,  s.  3,)  Thu.s,  instead  of  applying 
to  the  instrument  itself,  it  may  be  held  to  refer  to  the  time  for  which  it 
was  to  run. 

33.  The  owner  of  land,  containing  a  quarry,  leases  the  quarry  for 
ten  years,  and  then  conveys  the  land,  "  reserving  the  use  of  the  quarry 
until  the  expiration  of  tJie  lease"  By  mutual  consent,  the  lease  was 
cancelled  within  the  ten  years.  Held,  the  reservation  still  remained 
in  force,  till  the  ten  years  expired. (7) 

34.  Where  a  statute  requires  registration  of  "  any  lease  for  more 


(1)  Co.  Lit.  46  b.  and  n.  10.  1  Mod.  ISO ; 
Moore  v.  Hussey,  Hob.  18. 

(2)  Goodrigli't  f.  Richardson,  3  T.  R.  462  ; 
Child  I'.  Bayley,  Cro.  Jac.  459. 

(3)  Dyer,  124;  Goodrijrlit  v.  Richardson,  3 
T.  R.  463 ;  Bishop  of  Bath's  case,  6  Uep.  34 
b ;  Co.  Litt.  45  b.     See  ch.  14,  sec.  6-11. 

(4)  4  Kent,  95  n.  b,  and  authorities.  See 
Farwell  v.  Rogers,  4  Cush.  460 ;  Thomas  v. 
Afflick.  16  Ponn.  14;  Bigelow  t;.  Willson.  1 
Pick.  485;  Arnold  v.  XJ.  S^  9  Cranch,  104; 


Jacobs  V.  Graham,  1  Blackf.  392  ;  Wilcox  v. 
Wood,  9  Wend.  346;  Webb  v.  Dixon,  9 
E.  15. 

(5)  Co.  Lit.  46  b  ;  Blake  v.  Crowninshield, 
9  N.  H.  304 ;  The  King  v.  Justices,  ic,  4 
Nev.  &.  Man.  375;  Brainard  v.  Bushni.-ll,  11 
Conu.  1 7  ;  Glassinston  v.  Rawlins,  3  K.  407. 

^6)  Arnold  v.  U.  S.,  9  Cranch,  104;  Co. 
Lilt.  46  b,  n.  8,  9. 

(7)  Farnum  v.  Piatt,  8  Pick.  339. 


(a)  Under  an  agreement  to  quit  on  notice  of  10  days,  the  day  on  which  notice  is  givea 
must  be  excluded.     Aiken  v.  Appleby,  1  Morris,  8. 


202 


LEASE. 


[CHAP.  xy. 


than  seven  years  from  the  making  thereof  f^  a  lease  to  commence  in 
faturo,  though  for  a  term  less  than  seven  years,  is  within  the  act,  if 
the  time  be  more  than  seven  years  from  the  making  of  the  lease  to 
the  end  of  the  term.(l) 

85.  Where  a  lease  is  made  for  different  periods,  in  the  alternative — 
as,  for  instance,  for  seven,  fourteen  or  twenty-one  years ;  although  not, 
as  has  been  contended,  void  for  uncertainty,  the  legal  construction 
seems  to  be  somewhat  doubtful.  Thus  it  has  been  held,  in  one  case, 
that  the  duration  of  the  lease,  for  one  or  the  other  of  the  times  named, 
might  be  determined  either  by  the  lessor  or  the  lessee,  after  due  no- 
tice ;  but  in  a  later  case,  that  the  latter  alone  could  exercise  his  elec- 
tion. By  continuing  over  one  period,  he  extends  his  tenancy  to  the 
next.(2) ' 

35  a.  Lease  of  a  dwelling  and  other  buildings,  used  for  manufac- 
turing, meadow  and  pasture  lands,  with  all  water  courses,  &c.,  to  com- 
mence, as  to  the  meadow,  from  the  25th  of  December  last  past ;  as  to 
the  pasture,  from  the  25th  of  March  following ;  and  as  to  the  houses, 
mills,  and  other  premises,  from  May  1st.  Held,  this  last  was  the  sub- 
stantial time  of  entry,  the  houses,  &c.,  being  the  principal  subject,  to 
which  the  other  premises  were  merely  auxiliary. (3) 

35  h.  A  executed  to  B  a  lease  for  one  year,  containing  these  words: 
"B  to  have  the  privilege  to  have  the  premises  for  one  year,  one 
month,  and  twenty  days  longer;  but,  if  he  leaves,  he  is  to  give  four 
months'  notice  before  the  expiration  of  this  lease."  Held,  the  term  did 
not  terminate  until  the  expiration  of  two  years,  one  month,  and  twenty 
days,  in  case  the  tenant  did  not  give  notice  of  his  intention  to  quit  four 
months  previous  to  the  expiration  of  the  first  year.(4) 

35  c.  Lease  dated  March  25,  1783,  to  hold  from  the  13th  of  March 
last  past.  It  was  proved  that  the  lease  was  executed  some  time  after 
date.     Held,  the  term  commenced  March  25th,  1783.(5) 

36.  A  lease  for  one  year,  so  for  two  or  three  years,  as  the  parties 
shall  a.^ree,  from  the  first  year,  is  a  lease  for  two  years;  and  after  the 
beginning  of  every  subsequent  year,  is  not  determinable  till  the  end 
of  it.  (6) 

36  a.  A  demise  "  not  for  one  year  only,  but  from  j^ear  to  3'ear," 
constitutes  a  tenancy  for  at  least  two  years,  not  determinable  by  a  no- 
tice to  quit  at  the  end  of  the  first  year.(7) 

36  b.  So  a  lease _/or  years  continues  two  years.(8) 

37.  A  lease  may  be  made  to  terminate  before  its  natural  expiration, 
by  proviso  or  condition.  Of  this  nature,  is  the  usual  condition  of  re- 
entry upon  non-payment  of  rent.(a) 

38.  But  such  proviso  is  construed  strictly,  and  its  terms  must  be 
literally  complied  with. 

39.  Lease  for  twenty-one  years,  provided  that  either  party,  or  their 


(1)  Chapman  v.  Gray,  15  Mass.  439. 

(2)  Ferguson  v.  Cornish,  2  Burr.  1034; 
Groodright  v.  Richardson,  3  T.  R.  462  ;  Dann 
V.  Spurrier,  3  B.  &  P.  399-442  ;  Leo,  &c.  v. 
Merritt,  21  Wend.  336.  See  Waring  u  King, 
8  Mees.  &  W.  571. 

(3)  Doe  V.  Watkins,  7  E.  551. 


(4)  Chretien  v.  Doney,  1  Corast.  419. 

(5)  Steels  v.  Mast,  6  Dow.  &  R.  392. 

(6)  Harris  v.  Evans,  1  Wils.  262  ;  4  Dane, 
133. 

(7)  Den  v.  Cartright,  4  E.  29. 

(8)  Bac.  Abr.  Leases,  (L.)  3. 


(a)  See  Rent.    Also,  Browning  v.  Haskell,  22  Pick.  310. 


CHAP.  XY.] 


LEASE. 


203 


heirs  or  executors,  might  terminate  it  at  the  end  of  seven  or  fourteen 
years,  by  giving  six  months'  notice  in  writing,  under  his  or  their 
respective  hands.  The  lessor  died,  having  devised  the  Lands  to  three 
executors,  as  joint-tenants.  Two  of  them  gave  notice,  as  for  the 
whole,  lleld,  this  was  insufftcieut,  it  not  appearing  that  the  termina- 
tion of  the  lease  would  be  a  benefit  to  them ;  and  that  neither  a  subse' 
quent  ratification  by  the  non-signing  executor,  nor  his  joining  in  a 
suit  for  the  land,  was  sufficient  to  bind  the  lessee.(l) 

89  a.  With  regard  to  the  j)a?7w5  to  a  lease,  it  is  held,  that  one 
dissL'ized  can  deliver  a  lease  only  as  an  escrow^  to  take  ciiect  after  his 
enti-y,  and  it  will  pass  his  right  of  entry .(2) 

40.  By  St.  o2  lien.  8,  c.  28,  tenants  in  tail  are  empowered  to  make 
leases  for  life  or  lor  years,  which  will  bind  their  issue,  but  not  the  re- 
versioner or  remainder-man.  A  "lease  conformable  to  this  statute, 
though  made  by  feoffment  and  livery,  will  not  operate  as  a  discon- 
tinuance. 

41.  It  has  been  already  stated,  (ch.  3,)  that,  in  several  of  the  United 
States,  tenants  in  tail  are  empowered  to  convey  in  fee,  and  thereby 
bar  the  entailment.  It  has  been  questioned,  whether  such  power 
involves  the  right  of  creating  lesser  estates.  In  Delaware  alone,  it 
seems,  tenant  in  tail  is  expressly  authorized  to  convey  a  fee  or  any 
less  edate.  The  English  statute  is  said  not  to  be  in  force  in  Massa- 
chusetts. (3) 

42.  By  the  same  English  statute,  all  leases  made  for  years  or  for 
life,  by  those  having  an  inheritance  in  right  of  their  ivives,  or  jointly 
with  their  wdves,  of  any  estate  of  inheritance  before  or  afler  coverture, 
shall  bind  the  wife ;  provided  the  lease  be  by  indenture,  in  their  joint 
names,  sealed  by  her,  and  ihe  rent  reserved  in  such  manner  as  to  follow 
the  estate  itself.  And  the  husband  shall  hav-e  no  power  over  the  rent 
beyond  his  own  life,  but  by  joining  the  wife  in  a  fine. 

43.  Where  a  lease  is  made  not  conformably  to  this  statute,  the  wife, 
or,  if  she  die  before  the  husband,  her  heirs,  may  avoid  it.(4) 

44.  The  act  above  referred  to,  so  far  as  it  relates  to  husband  and 
wife,  has  been  substantially  re-enacted  by  a  statute  of  North  Carolina, 
which,  however,  seems  to  leave  it  doubtful  whether  a  lease,  to  be  valid, 
must  be  an  indenture.  The  wife  is  privately  examined.  The  act  is 
expressly  declared  not  to  apply  to  a  grant  of  the  reversion,  or  a  lease 
without  impeachment  of  waste,  or  for  more  than  three  lives  or  twenty- 
one  years.(5)      , 

44  a.  The  husband  may  lease  lauds  owned  in  fee  by  the  wife  for  a 
term  of  years,  during  the  coverture  at  least;  and  an  agreement  to  give 
such  a  lease,  if  not  otherwise  objectionable,  may  be  enforced  in  Chan- 
cery.(6.) 

44  b  Land  was  conveyed  to  husband  and  wife,  who  executed 
articles,  reciting  a  sale  by  them  in  consideration  of  a  certain  sum,  and 
of  certain  quantities  of  grain  yearly,  during  their  joint  lives,  with  two 
acres  of  land  for  the  same  term,  in  consideration  whereof,  the  husband 


(1)  Risiht  V.  Cutliell,  4  Dane,  133. 

(2)  Doe  V.  "Watts,  9  E.  19. 

(3)  4  Cruise,  57  ;  Vaupli.  383  ;  TValter  v. 
Jackson,  1  RoUe  Abr.  633;  Wheelright  v. 


"Whcelrifflit,  2   Mass.  450;    Dela.    St.  1829, 
197  ;   4  Dane,  126-7. 

(4)  4  Cruise,  57. 

(5)  1  N.  C.  Rev.  Sts.  261. 

(6;  Eaton  v.  Wliitaker,  18  Conn.  222. 


204:  LEASE.  [CHAP.  XV. 

leased,  demised,  &;c.  The  wife,  not  having  acknowledged  the  articles 
under  the  statute,  survived  the  husband,  and  received  the  stipulated 
returns  for  two  or  three  years,  when  she  was  ejected  from  the  two 
acres,  and  the  returns  were  not  paid.  Held,  she  was  entitled  to  re- 
cover ill  ejectment,  from  those  having  no  other  title  than  under  the 
articles,  and  deujnng  her  right.(l) 

44  c.  A  husband  leased  his  wife's  land  for  one  year,  and  died.  Held, 
his  life  estate  ceased  at  his  death,  and  the  rent  belonged,  not  to  his 
administrator,  but  to  the  wife.(2) 

45.  A  tenant  Jor  life  cannot  make  a  lease,  to  continue  beyond  his 
own  estate.  One  coming  in  as  tenant  to  a  tenant  for  life  does  not, 
upon  his  death,  become  the  tenant  of  the  remainder-man,  without  his 
assent,  express  or  implied.  And  if  A,  tenant  for  the  life  of  B,  lease 
for  years  to  C,  and  B  die  before  the  end  of  the  term ;  A  may  re-enter, 
though  he  have  since  purchased  the  reversion  in  fee.  So  the  leases  of 
tenants  by  the  curtesy  and  tenants  in  dower  become  void  with  their 
death,  [siipra,  s.  44,  c.)  Where  the  tenant  for  life  and  the  reversioner 
or  remainder-man  join  in  leasing  ;  during  the  life  of  the  former,  it  shall 
be  his  lease,  and  the  confirmation  of  the  latter ;  and  afterwards,  vice 
vei'sa.{3)  ^ 

45  a.  In  South  Carolina,  where  a  tenant  for  life  of  land  or  slaves 
dies  after  the  1st  of  March  in  any  year,  having  leased  the  land  or 
slaves  to  another,  the  lessee  shall  not  be  disturbed  in  his  possession 
during  the  year,  but  he  shall  secure  to  the  remainder-man  the  rent  or 
hire  which  shall  accrue  after  the  death  of  the  tenant  for  1116.(4) 

46.  A  guardian  in  socage,  in  England,  having  an  interest  as  well  as  a 
poiver^  may  lease  the  ward's  land  in  his  own  name.  But  the  lease  ex- 
pires upon  the  ward's  coming  of  age. (5) 

47.  In  Virginia,  a  testamentary  guardian  may  make  a  lease,  reserving 
the  best  annual  rent  and  most  beneficial  covenants,  for  any  term,  end- 
ing when  the  ward  shall  be  of  age,  or  continuing  longer  at  the  ward's 
election.  So  he  may  take  or  make  a  surrender  of  an  old  lease.  The 
committee  of  an  insane  person  are  invested  with  the  same  power.  In 
North  Carolina,  a  guardian  may  lease  slaves  and  land,  the  latter  only 
in  writing,  during  the  minority  of  the  ward,  with  special  provisions  as 
to  the  preservation  of  the  estate,  and  to  guard  against  waste.  In  Ill- 
inois, a  guardian  may  lease  for  such  time  and  on  such  terms  as  the 
court  may  direct,  but  not  beyond  the  ward's  minority,  which  in  females 
is  eighteen  years.(a)  In  Connecticut,  the  conservator  of  an  idiot  cannot 
lease  his  land.(6) 

(1)  Clark  V.  Thompson,  2  Jones,  274.  j      (5)  Bac.  Abr.  Lease,  1,  s.  9.     (See  Roe  v. 

(2)  Arnolds.  Hodges,  10  Humph.  39,  {in-  Hodgson,  2  Wils.  129,  135;  2  RoUe's  Abr. 
fra.  s.  45.)  41.) 

(3)  Co.  Lit.  47  b;  4  Cruise,  62;  Co.  Lit.  '  (6)  Anth.  Shep.  477;  1  Vir.  R.  C.  322, 
45  a;  Treport's  case,  6  Rep.  14;  Horsey  v.  '  235 ;  1  N.  C.  Rev.  St.  311 ;  Treat  v.  Peck,  5 
Horsey,  4  Harring.  517.  I  Conn.   280;    lilin.    Rev.    L.   455;    Hlin.  St. 

(4)  Preeman  v.  Tompkins,  1  Strobh.  Eq.  53.  "  1835,  36. 


(a)  In  the  same  State,  a  testamentary  guardian,  appointed  by  deed  or  will  by  father  or 
mother,  has  charge  of  the  estate. 


OHAP.  XV.] 


LEASE. 


205 


48.  If  a  gnardinn  lease  by  parol  for  a  year,  and  during  the  year  the 
ward  die,  his  heir  cannot  recover  tlie  rent.(l)(a) 

49.  Ill  Massachusetts,  a  lease  by  the  father  or  mother,  as  guardian 
by  nature,  of  the  child's  land,  is  void ;  upon  the  principle,  that  such 
guardiaru  is  under  no  bonds  lor  the  faithful  performance  of. his  trust. 
In  Connecticut  and  Missouri,  the  father,  as  guardian  by  nature,  has 
control  of  the  child's  estate,  subject  to  an  account  in  Conneciicut,  and 
also  in  ^lissouri,  unless  the  estate  is  derived  from  the  father.  The 
father's  power  extends  to  ]and  wh\Qh  descended  ex  jycirte  makrna.  In 
Missouri,  a  mother  has  the  same  anthorit}',  where  there  is  no  lawful 
father,  or  where  the  father  is  dead. (2) 

50.  An  executor  or  administrator  may  lease  lands,  in  which  the  de- 
ceased owned  a  term  for  years;  and  the  rents  will  be  assets.(3)(^) 

61.  An  heir  may  lease  before  entry,  but  not  after  an  abatement  by 
the  entrv  of  a  stranger.(4) 

52.  joint  tenants,  parceners^  and  tenants  in  common  may  lease  their 
undivided  shares,  jointly  or  severally .(c)  And  where  one  leases,  the 
lessee  has  the  same  rights  in  relation  to  the  others,  which  the  lessor 
before  had.  So  one  jnay  lease  to  another — this  being  a  mere  contract, 
by  which  the  latter  shall  take  the  whole  instead  of  half  the  prolits.(5) 

53.  If  two  tenants  in  common  lease  the  land,  and  one  of  them  die, 
the  other  cannot  maintain  an  action  alone,  for  rent  accruing  after  the 
death  of  the  i'ormer.(6) 

54.  If  there  be  two  parceners,  owners  of  three  acres  of  equal  value, 
and  one  of  them  lease  his  interest,  and  upon  partition  only  one  acre  be 
assigned  to  the  lessor ;  the  lessee  may  still  have  an  additional  half 
acre.  But  if  two  parceners  own  two  acres,  and  one  of  them  lease  one 
acre,  and  upon  partition  the  other  is  assigned  to  him,  the  lease  becomes 
void. (7) 

54  a.  Where  there  are  several  trustees,  a  part  of  them  cannot  exclude 
the  others  from  possession ;  and  a  lease  given  by  a  part,  although  a 
majority,  can  give  the  lessees  no  better  right  to  possession  than  the  mi- 
nority have.  (8) 

54  h.  One  of  three  tru.stees  has  no  authorit}^  to  put  an  end  to  a  lease  of 
the  j)roperty  of  the  charit3-,(9) 

55.  If  an  infant  lease  his  lands,  the  lease,  it  seems,  is  not  void,  al- 
though sometimes  so  held,  but  onl}'-  voidable,  whether  with  or  without 


(1)  Welles  V.  Cowles,  4  Conn.  182. 

(2)  May  v.  Calder,  2  Mass.  55 ;  Foster  v. 
Gorton,  5  Pick.  185;  Dut.  Difr.  23;  Bacon  v. 
Taylor,  Kirby,  368;  Kline  v.  Beebe,  6  Conn. 
494;   Mis.so.  St.  293. 

(3)  4  Cruise,  62. 

(4)  4  Dane,  135;  Tayl.  L.  &  T.  53;  Sliep. 
Touch.  269. 


(5)  lb.  2   Ohio,    293  ;    Keay  v.  Goodwin, 
16  Mass.  4. 

(6)  Burne  v.  Cambridge,  1  M.  &  Hob.  539 ; 
Jurist,  (Jan.  1818,)  413. 

(7)  Co.  Lit.  46  a,  and  n.  5. 

(8)  Cox  V.  Walker,  26  Maine,  504. 

(9)  Kingsley   v.   School   Directors,  &c.,   2 
Barr,  28. 


(a)  It  is  .said  in  this  case  that  a  guardian  has  an  authority  only,  not  coupled  with  an  in- 
terest. 

(6)  In  Missouri,  he  may  lease  for  a  term  not  exceeding  three  years;  St.  1843,  3,  4.  la 
Alabama,  at  auction,  (Clay,  199.) 

(c)  Where  several  persons  become  bound  for  the  payment  of  rent,  in  contemplation  of 
law  tiie  lease  is  to  all,  where  there  is  nothing  in  the  body  of  the  instrument  to  negative 
that  conclusion.     Magee  v.  Fisher,  8  Ala.  320. 

Under  a  joint  lease  to  two  tenants,  the  occupation  of  one  is  sufficient  to  make  both  liable 
for  the  rent.     Kendall  v.  Carland,  5  Gush.  74. 


206 


-   LEASE. 


[CHAP.  XV. 


rent;  inasmucli  as  the  infant  cannot  plead  to  an  action  upon  it  "won 
est  fadum,^^  hut  must  plead  his  infancy  specially.  If  such  rent  is  re- 
served as  to  make  the  lease  a  beneficial  one,  it  is  prima  facie  binding; 
but  may  be  avoided  by  the  infant  when  he  comes  of  age,  or  by  his  heir, 
if  he  die  in  minority.  If  an  infant  make  a  lease,  and  after  coining  of 
ao-e  mortgage  to  the  lessee,  the  mortgage  referring  to  the  lease,  this  is 
a  confirmatign  of  the  latter.  So,  if  an  infant  receive  rents,  he  cannot 
demand  them  again  when  of  age.(l)(a) 

56.  A  lease  may  become  void^  or  he  forfeited,  by  various  causes.  In 
some  points  of  view,  this  subject  will  be  considered  hereafter.(6)  So 
far  as  this  consequence  follows  from  some  act  or  neglect  of  the  lessee, 
it  is  said  to  be  doubtful,  whether  a  lease  can  be  forfeited  by  a  mere 
neglect  of  the-  lessee  to  perform  his  contract.  A  sub-lessee  certainly 
cannot  allege  such  forfeiture,  until  it  has  been  claimed  by  the  party  in- 
terested,(2) 

57.  Where  a  lease  made  by  any  particular  tenant  is  merely  voidable, 
if,  after  his  death,  the  heir,  reversioner  or  remainder-man  accept  or  sue 
for  rent  from  the  lessee,  or  do  any  other  act  recognizing  the  existence 
of  the  lease;  this  operates  as  a  confirmation  of  it.  But  if  it  were  void, 
there  can  be  no  confirmation. (3)  In  order  to  have  the  effect  above  re- 
ferred to,  the  act  of  the  party  entitled  must  be  done  with  a  knowledge 
of  his  title  at  the  time  ;  or  he  must  have  lain  by,  and  suffered  the  ten- 
ant to  make  improvements.(4) 

58.  Both  these  principles  are  illustrated  in  the  case  of  a  lease  by 
tenant  in  tail,  not  conformable  to  St.  32  Hen.  8.  If  the  issue  receive  or 
sue  for  the  rent,  or  sue  for  waste,  this  is  a  confirmation.  But  as  to  the 
reversioner-  or'!remainder-man,  the  lease  is  void,  and  no  act  of  his  will  make 
it  good. 

59.  A  lease  by  husband  and  wife,  not  conformable  to  the  statute,  is 
voidable  merely,  and  may  therefore  be  confirmed  by  the  wife,  after  the 
husband's  death.  Whether  a  lease  by  the  husband  alone  is  absolutely 
void,  seems  an  unsettled  point.(5) 

60.  All  leases  made  by  tenants  for  life,  (unless  by  virtue  of  a  power,) 
becom3  absolutely  void  by  their  death.     Thus,  where  such  lease  was 


(1)  Bac.  Abr.  Lease  B. ;  Co.  Lit.  45  b,  n. 
1;  Zouch  V  Parsons,  3  Burr.  1806;  Stodv  v, 
Johnson,  2  Y.  &  Coll.  586 ;  Parker  v.  Elder, 
11  Humph.  546. 

(2)  Todd  V.  Hall,  10  Conn.  559-60. 


(3)  Noy's  Max.  88. 

(4)  Jenkins  v.  Church,  Cowp.  482. 

(5)  Doe  V.  Weller,  7  T.  R.  478 ;  Bac.  Abr. 
Lease  C;  Wotton  «.  Hele,  2  Saun.  180,  n. 
9  ;  Doe  v.  Butcher,  Doug.  52. 


(a)  In  England,  the  subject  of  leases  by  ecclesiastical  persons,  is  an  important  one,  and 
has  been  regulated  by  enabling  and  restrainiiig  statutes,  the  construction  of  which  has  given 
rise  to  many  nice  questions.  In  the  United  States,  these  acts  are  not  in  force,  and  the  sub- 
ject itself  is  of  little  importance.  I  have  met  with  no  statutory  provisions  relating  to  it. 
In  Vermont,  (1  Ver.  L.  234,)  lands  appropriated  or  granted  for  tlie  use  of  the  ministry  or 
"  social  worship  of  God,"  may  be  leased  by  the  selectmen  of  the  town  where  they  lie.  In 
the  same  State,  glebe  rights,  granted  by  the  Crovvn  to  the  Church  of  England,  are  declared 
to  be  public  reservations,  and  to  have  vested  in  the  State ;  and  they  are  granted  to  the 
towns  where  they  are  located,  with  power  to  the  selectmen  to  lease  them,  the  rent  to  be 
applied  in  aid  of  schools.  See  Pawlet  v.  Clark,  9  Cranch,  292;  Cheever  v.  Pearson,  16  Pick. 
273  ;  Verm.  Rev.  St.  403.  A  lease  of  a  benefice,  by  which  it  is  provided  that  certain 
tithes  shall  be  collected  by  the  lessee,  and  appropriated  to  the  payment  of  tlie  debts  of 
the  rector  of  the  parish,  is  void  under  the  13  Bliz.  c.  20.  Walthew  v.  Crofts,  4  Eng.  L.  & 
Eq.  504. 

(6)  See  Bent.     Condition. 


CHAP.  XV.] 


LEASE. 


207 


made  for  twenty-one  years,  and  the  remainder-man,  after  the  death  of 
tenant  for  life,  allowed  the  lessee  to  occupy  four  or  five  years,  and  re- 
gularly received  rent  from  him;  held,  he  might  still,  after  notice  to 
quit,  maintain  ejectment. 

61.  So  where  the  remainder-man,  after  the  dcatli  of  tenant  for  life, 
sold  the  land  at  auction,  and  both  in  the  conditions -of  sale  and  the 
deed  to  the  purchaser  the  lease  was  mentioned,  and  excepted  from  the 
covenant  against  incumbrances  ;  and  the  purchaser  made  a  mortgage, 
in  which  the  same  notice  was  taken  of  the  lease,  and  the  mortgagee 
received  rent  from  the  tenant:  still  the  lease  was  held  void.(l) 

62.  Nor  will  the  circumstance  of  the  tenant's  laying  out  money  upon 
the  land  operate  at  law  as  a  confirmation,  where  there  seems  to  have 
been  no  intention  to  confirm  the  old,  or  grant  a  new  lease;  but  both 
parties  acted  under  the  mistaken  belief,  that  the  original  lease  was 
good.(2) 

63.  But  where  a  remainder-man  receives  rent,  and  allows  improve- 
ments to  be  made,  knowing  the  defect  in  the  lease,  Chancery  will  com- 
pel him  to  execute  a  new  lease. 

64.  A  tenant  for  life  leased  under  a  power,  but  not  conformably  to 
it.  After  his  death,  an  assignee  of  the  lessee  erected  buildings,  and 
the  remainder-man  received  rent  for  six  years.  The  latter  then  brings 
ejectment,  and  recovers  the  premises;  and  the  tenant  prays,  in  equity,  lor 
an  injunction  against  proceedings  at  law,  and  that  he  may  be  quieted. 
The  defendant,  in  his  answer,  did  not  deny  notice.  Ileld,  he  should 
execute  a  new  lease.(3) 

65.  In  New  York,  a  lease  is  avoided  by  conviction  of  the  tenant  of 
using  the  premises  for  a  bawdy-house.(-i) 

66.  Where  a  lease  contains  the  proviso,  that  if  the  rent  shall  not  be 
paid  at  a  certain  time,  the  lease  shall  be  void,  and  the  rent  is  not  paid 
at  that  time;  a  subsequent  acceptance  of  rent  will  not  operate  as  a 
waiver  of  the  lessor's  right  to  avoid  the  lease,  or  as  a  confirmation 
thereof.  Thus,  where  the  condition  was,  that  upon  non-payment 
within  forty-days,  the  lease  should  be  void;  and  the  rent  was  not  thus 
paid,  but  afterwards  the  lessor  accepted  it,  and  made  an  acquittance  as 
if  it  had  been  paid  at  the  day,  and  afterwards  for  several  years  con- 
tinuetl  to  receive  the  rent ;  held,  the  above  proviso  was  a  limitalion  to 
delennine,  not  merely  a  condition  to  undo,  the  estate  ;  that,  upon  non- 
pa)'ment,  the  land  became  discharged  of  the  contract;  the  tenant  held 
neither  at  will  nor  at  sufferance;  and  the  lessor  might  re-grant  the  land. (5) 
But  if  there  be  a  proviso  in  a  lease,  that  upon  cdienation  the  lessor  may 
re-enter;  acceptance  of  rent  after  breach  of  condition  will  be  a  waiver, 
if  the  lessor  had  knowledge  of  such  breach ;  more  especially  where 
such  rent  has  subsequently  accrued. (6)     (See  infra,  e.  IG.) 

67.  So  it  has  been  held  in  New  Hampshire,  that  where  a  lessor  re- 
enters lor  non-payment  of  rent  under  a  condition  for  re-entry,  accept- 


(1)  Doe  V.  Archer,  1  Bos.  &  P.  531. 
?2)  Doe  V.  Butclicr,  Doug.  50. 

(3)  Stiles  V.  Cowper.  3  Alk.  692. 

(4)  2  N.  Y.  R.  S.  702. 

(5)  Finch  V.  Tlirockmorton,  Cro.  Eliz.  221. 
Popii.  53.  In  this  ease,  however,  Queen 
Ehzabetii  was  tlie  le.ssnr,  and  the  non-pny- 
luent  of  rent  was  found  by  office  before  the 


second  grantee  entered.  Co.  Lit.  215  n,  t 
n.  117;  Sj'mspn  v.  Butcher,  Doug.  51; 
Gwynn  v.  Jones,  2  Gill  &  J.  183. 

(G)  Pennant's  case,  3  Rep.  64 :  Roe  v  Har- 
rison, 2  T.  R.  425 ;  Goodriglit  v.  Davids, 
Cowp.  803;  Clialker?;.  Chalker,  1  Conn.  79; 
Jackson  v.  Brownson,  7  John.  234. 


208 


LEASE. 


[CHAP.  XV, 


ance  of  the  instalment  due,  as  well  after  eutiy  as  before,  is  a  waiver  of 
breach,  and  the  tenant  is  not  a  trespasser  for  entering  and  gathering 
vegetables  on  the  land.(l)(a) 

68.  A  lessee  covenants  to  plant  a  certain  number  of  trees,  and 
always  to  keep  that  number  on  the  land.  After  the  breach,  the  lessor 
receives  rent.     He  may  still  re-enter  for  any  subsequent  breach.(2) 

69.  In  some  cases,  a  lease,  though  avoided  in  part  by  a  party  having 
a  right  so  to  do,  will  afterwards  revive.  Thus,  where  a  widow  avoids 
a  lease  made  by  the  husband  during  marriage,  it  shall  be  in  force  again 
after  her  death. (3) 

70.  The  law  presumes  a  lease  to  be  beneficial  to  the  lessee.  (See 
ante^  27.)  Hence,  idiots,  infants  and  married  women  may  be  the  les- 
sees. They  may  disclaim,  upon  the  removal  of  their  disabilities ;  but  a 
subsequent  occupancy  will  give  validity  to  the  lease.(4) 

71.  A  lease  usually  contains  covenants,  both  on  the  part  of  the  lessor 
and  the  lessee.  If  the  lessor  alone  signs  the  lease,  he  cannot  maintain 
an  action  of  covenant.  But  the  assignee  of  a  lease  has  been  held  to 
be  bound  in  equity  by  the  covenants,  though  he  did  not  sign  any 
instrument.(Z>) 

71  a.  Where  it  is  agreed  that  a  lease  shall  contain  the  t/5i^a?  covenants, 
the  question  "  what  are  usual  covenants"  depends  upon  circumstances, 
such  as  the  usage  of  the  place  and  the  nature  of  the  property  ;  but  is 
always  for  the  jury. (5) 

71  b.  Thus  a  lessor  cannot,  as  matter  of  right,  demand  a  covenant 
from  the  lessee  not  to  assign  or  undeilet  without  license ;  or  not  to 
carry  on  a  particular  trade  on  the  premises;  or  to  keep  them  insured 
or  paj^  taxes;  nor  will  he  be  bound  to  covenant  that  he  will  rebuild  in 
case  of  iire,  with  a  stipulation  that  the  rent  shall  cease  on  his  failure  to 
do  so.  But  a  covenant  for  the  lessee's  quiet  enjoyment,  without  inter- 
ruption from  the  lessor  or  those  claiming  under  him,  is  said  to  be 
usual.{6) 

71c.  Equity  will  restrict  a  lessee  to  the  specific  performance  of  his  co- 
venants. So,  where  a  lease  contained  a  clause,  restricting  the  use  of  the 
premises  to  "  the  regular  dry  -goods  jobbing  business,"  and  -the  lessee 
commenced  selling  goods  at  auction  therein  ;  held,  although  there  was 
no  damage  or  irreparable  injury  done  to  the  lessor,  nor  any  nuisance  at 
law,  yet  it  was  a  breach  of  covenant,  and  the  lessor  could  restrain  the 
tenant  by  injunction. (7) 

71  d.  With  regard  to  covenants  affecting  the  title  to  the  demised  pre- 
mises, it  has  been  held,  that  no  implied  covenant  against  eviction  arises 
from  the  mere  relation  of  landlord  and  tenant.(8)     So  in  New  Hamp- 


(1)  Coon  V.  Brickett,  2  N.  H.  163. 

(2)  Bleecker  v.  Smith,  13  Weud.  530. 

(3)  Co.  Lit.  46  a. 

(4)  4  Cruise,  67.  ' 

(5)  Bennet  v.  Womack,  7  B.  &  C.  627. 

(6)  Church  v.  Brown,  15  Ves.  258 ;  Van 
Corp,  3  My.  &  K.  269,  280,  282 ;  Beunet 
Womack,  7  B.  &  C.  627  ;  Doe  v.  Sandham, 


1  T.  R.  705  ;  Tayl.  L.  &  T.  27.     See  Page  v. 
Broom,  3  Beav.  36. 

(7)  Steward  v.  Winters,  4  Sandf.  Ch.  587. 

(8)  Jackson  v.  Cobbin,  8  Mees  &  W.  790  ; 
Granger  v.  Collins,  6  Mees.  &  W.  458.  See  6 
Scott,  447  ;  Piston  v.  Cater,  9  Mees.  &  W. 
315;  Walker  v.  Hatton,  10,  249. 


(a)  "  It  is  unjust,  that  a  lessor  should  receive  both  the  penalty  and  the  rent ;  accept  per- 
formance of  the  condition,  and  retain  the  forfeiture  for  non-performance."     2  N.  H.  164. 

(fc)  See  Trustees,  &c.  v.  Spencer,  7  Ohio,  149;  Wilson  v.  Leonard,  3  Beav.  373  ;  Duffield 
v.Whitlock,  26  Wend.  55  ;  Gardner  v.  Kelteltas,  3  Hill,  330. 


CHAP.  XV.] 


LEASK. 


209 


sliirc,  it  lias  been  held,  that  tlie  words  "  let  and  lease"  do  not  make  a 
covenant  in  law,  or  implied  covenant.(l)  But  the  word  df^mifie  implies 
a  covenant  of  the  rigiit  to  lease  and  l'or|quiet  cnjoymcnt.(2)(a)  So,  in 
Ohio,  the  words  "have  rented. "(o) 

71  e.  A  covenant,  that  the  lessee  shall  quietly  enjoy  the  premises  "free 
from  all  eviction,  interruption,  or  molestation  from  orjiy  any  person,'' 
is  not  broken  by  a  forcible  disturbance  and  injury  committed  by  a  mob, 
against  the  will  of  the  covenantor,  although  the  mob  were  exasperated 
by  some  of  his  previous  acts.(4)(/>) 

71  /."  The  words,  "  doth  agree  that  the  lessee  shall  hold  and  occupy" 
during  the  term,  amount  to  a  general  covenant  for  quiet  enjoyment, 
but  it  does  not  apply  to  disturbances  made  by  virtue  of  subsequently 
acquired  rights.  As,  for  instance,  the  subsequent  location  of  a  town- 
way  over  the  land ;  the  establishment  of  which,  at  the  time  of  making 
the  lease,  was  a  mere  naked  possibility  ;  and  for  which,  moreover,  the 
lessee,  as  oiuner,  has  a  perfect  constitutional  remedy  against  the  public, 
to  the  extent  of  the  damage  sustained  by  him.  Upon  these  grounds, 
the  case  is  held  to  be  in  principle  like  a  tortious  eviction. (5)(c) 

•71  5'.  So,  where  the  lessor  covenants  against  all  claiming  under  him, 
it  is  no  breach,  that  the  tax  collector  enters  and  seizes  goods  for  arrears 
due  even  prior  to  the  lease. (6) 

71  h.  But  where  a  landlord  covenanted  to  repair  all  external  parts  of 
the  premises  leased,  and  the  corporation,  by  virtue  of  an  act  subse- 
quently passed,  took  down  an  adjoining  tenement,  leaving  the  partition 
and  wall  without  support,  which  tliereby  gave  way ;  held,  an  action 
would  lie  upon  the  covenant,  notwithstanding  a  provision  in  the  statute 
for  compensation.  He  was  bound  immediately  to  make  the  necessary 
repairs.(7) 

71  i  For  breach  of  the  covenant  for  quiet  enjoyment,  the  damages 
consist  of  the  costs  incurred  by  the  lessee,  in  defending  against  the  suit 
of  an  adverse  claimant,  with  the  rent  paid  the  lessor  since  eviction,  for  a 
period  not  exceeding  six  years.(8) 


(1)  Loveriiigv.  Lovering,  13  N.  TT.  513. 

(2)  Craiich  v.  Fowle,  9  N.  II.  219. 

(3)  Young  V.  Hargrave,  7  Ohio,  63. 

(4)  Surget  v.  Ariglii,  1 1  S.  &  M.  87. 

(5)  Ellis  V.  Welch,  G  Mass.  246;  see  "Wilson 
V.  Anderson,  1  Carr.  &  K.  544;  Frost  v. 
Earnest,  4  Whart.  86;  Waiiiwright  v.  Rams- 
den,  1  NicLoll,  &c.,  714;  Patterson  v.  Boston, 


23   Pick  425 ;  Lister  v.  Zobley,  7  Ad.  &  Ell. 
124;   Queen  v.  London,  &c.,  ib.  717. 

(6)  Stanley  v.  Hays,  3  Ad.  &  Ell.  (K  S.) 
105. 

(7)  Green  v.  Eales,  2  Ad.  &  Ell.  (N.  S.) 
225. 

(8)  Kelly  v.  Dutch,  &c.,  2  Hill,  105.  See 
Dexter  v.  Manley,  4  Gush.  14 ;  Smith  v. 
Howell,  6  Eng.  L.  &  Equ.  490. 


(a)  Otherwise  where  there  is  an  express  covenant  for  quiet  enjoyment.  Line  v.  Stephen- 
eon,  4  Bing.  n.  678;  Crancli  v.  Fowle,  9  N.  IL  219. 

(b)  So,  in  case  of  a  written  unsealed  agreement  between  A  &  B,  that  B  shall  have  the  sole 
and  uninterrupted  use  and  occupation  of  A's  land  ;  if  at  the  commencement  of  tlie  term  C, 
a  former  tenant,  but  whose  term  has  expired,  is  in  possession ;  A  is  not  liable  for  breach 
of  his  contract.     Gardner  v.  Keteltas,  3  Hill,  330. 

(c)  For  the  reason  stated  in  the  text,  the  taking  of  part  of  a  leased  lot  by  the  government 
of  a  city,  to  widen  the  street,  does  not  annul  the  lease,  or  discharge  the  liability  for  rent 
during  the  term.  Parks  v.  Loston,  15  Pick.  198;  Wainwright  v.  Ramsden,  5  Mees.  &  W. 
602. 

A  covenant  to  pay  assessments,  in  a  lease  of  land  in  the  city  of  New  Tork,  executed  in 
1799,  was  held  to  extend  to  assessments  imposed  for  opening  streets  pursuant  to  statutes 
passed  subsequentl}',  and  imposing  them  in  a  mode  unknown  to  the  laws  existing  when  the 
lease  was  executed.     Kearney  v.  Post,  1  Sandf.  105. 

Vol.  L  14 


210  LEASE.  [CHAP.  XT. 

72.  A  lease  often  contains  covenants  on  the  part  of  the  lessor  or, 
lessee,  to  put  or  keep  the  premises  in  repair. {a) 

72  a.  In  an  action  of  covenant,  bj  a  lessor  against  two  lessees,  for 
rent  due  upon  a  lease,  containing  a  covenant  on  the  part  of  the  lessor 
to  repair,  the  plaintiff  need  not  prove  that  the  premises  were  put  in 
repair  before  possession  was  taken,  nor  that  both  defeadants  went  into 
possession,  the  taking  possession  bj  one  being  in  law  a  possession  by 
both,  and  a  waiver  of  the  condition  to  repair,  and  the  fact  that  the 
premises  were  out  of  repair  being  a  matter  of  defence,  to  be  proved  by 
the  defendants.(l) 

72  h.  In  an  action  against  a  tenant  upon  his  covenant  to  repair,  the 
breach  alleged  was,  that  he  suffered  and  permitted  the  premises  to  be 
out  of  repair;  but  the  proof,  that  windows  were  voluntarily  removed. 
Held,  a  variance.(2) 

72  c.  A  covenant  by  the  landlord  to  ptay  ^xW  repairs  does  not  bind 
him  to  maJce  them, (8) 

72  d.  Where  a  tenant  himself  agrees  to  make  certain  repairs,  and 
others  become  necessary  in  order  to  make  the  premises  habitable,  he 
cannot  leave  because  the  landlord  fails  to  make  them. (4)  • 

72  e.  The  mere  removal  and  sale  by  a  tenant,  during  the  term,  of 
iSxtures,  which  he  does  not  immediately  replace,  but  which  can  be  re- 
placed before  the  end  of  the  term,  is  not  in  itself  a  breach  of  his  cove- 
nant to  repair  and  uphold  the  demised  premises,  and  to  deliver  up  the 
same  at  the  end  of  the  term,  together  with  all  things  affixed  thereto, 
though  such  removal  may  be  made  in  such  a  way  as  to  amount  to  non- 
repair. (5) 

(1)  Harger  v.  Edmonds,  4  Barb.  256.  i      (4)  Arden  v.  Pullen,  10  M.  &  W.  321. 


(2)  Edge  V.  Pemberton,   12   Mees.  &  W. 
187. 

(3)  Looinis  v.  Reetler,  9  Watts,  516. 


(5)  Burrell  v.  Davis,   1  Eny.  Law  &  Equ. 
403. 


(a)  As  to  the  question,  whether  a  landlord  impliedly  undertakes  that  the  premises  shall 
be  tenantahle,  see  Smilli  v.  Marrable,  1  C.  &  Mar.  479  ;  11  Mees.  &  "W.  5  ;  a  case  wiiere  the 
house  was  infested  with  hugs,  and  it  was  held  that  the  tenant  might  quit  for  that  cause; 
and  a  similar  later  case,  (Hart  v.  Windsor,  12  Mees.  &  W.  68,')  where  the  same  nuisance 
existed,  but  the  tenant  had  agreed  to  keep  in  repair,  and  a  garden  was  let  with  the  house. 
In  this  case  the  tenant  quit  before  any  rent  was  due,  and  without  liaving  had  any  beneficial 
occupation.  Held,  (overruling  prior  cases,)  that  the  facts  furnished  no  defence  to  a  suit  for 
the  rent. 

So  Avliere  a  tvharf  was  leased,  and,  before  entry  of  the  tenant,  a  large  portion  of  it  was 
destroyed  by  natural  decay,  of  which  the  lessee  gave  notice  to  the  landlord,  requesting  him 
to  repair ;  but  he  neglected  to  do  it,  and  the  lessee  then  refused  to  enter  or  pay  rent;  held, 
he  was  .still  liable  for  the  rent.  Hill  v.  Woodman,  2  Shepl.  38.  See  Hinde  v.  Gray,  1  Man.  & 
G.   195  ;  Cleves  v.  Willoughby,  7  Hill,  83. 

"Where  a  lease  is  in  writing,  parol  evidence  cannot  be  given  that  the  landlord,  at  the  time 
of  executing  ir,  promised  to  repair.  Cleves  v.  Willoughby,  7  Hill,  83  ;  City,  &c.  v.  Price,  3 
Post.  N.  H.  542. 

"Where  there  is  no  agreement  on  tlie  part  of  the  lessor  to  repair,  the  lessee  cannot,  when 
sued  for  the  stipulated  rent,  set  up  the  want  of  repains,  either  as  a  defence  or  in  reduction 
of  tlie  claim.  Mofl'atl  v.  Smith,  4  Comst.  126. 

So  it  is  lield,  that  tenants  have  no  right  to  charge  their  landlords  for  repairs,  unless  by 
express  contract;  and  this  rule  applies,  a /or^iori,  where  the  tenant  knew  tliat  the  premises 
were  out  of  repair,  and  covenanted  to  return  them  in  the  order  in  which  they  were  received. 
City  Council  v.  Moorhead,  2  Rich.  430. 

But  a  tenant  making  new  repairs  and  erections  on  the  farm,  under  a  promise  to  give  the 
farm  to  the  tenant  and  his  wite,  (the  daughter  of  the  landlord,)  may  recover  the  value  of 
such  repairs  and  erections,  if  the  landlord  devise  the  farm  to  another.  Cornell  v.  "Vanarts- 
dalen,  4  Barr,  364. 


CHAP.  XV.] 


LIEASK. 


211 


72/!  It  has  been  held,  that,  in  assumpsit  for  rent,  the  tenant  may- 
avail  hiniseli'of  a  breach  of  the  landlord's  agreenient  to  repair,  by  way 
of  7xcouji'ment,  though  not  as  a  set-ofr.(l) 

72/7.  So,  in  replevin,  after  a  distress  for  rent,  althougli  it  seems  that 
the  defendant  may  avail  himself  of  a  breach  of  the  landlord's  agree- 
ment to  repair,  by  way  o^  recoupment^  yet  he  cannot  bjjvay  of  set-ofif, 
nor  under  a  plea  of  eviction,  nor  can  the  recoupment  be  pleaded  in 
bar.(2) 

72  h.  So,  it  has  been  held  that  damages  occasioned  to  a  tenant  by 
great,  unnecessary  and  tortious  negligence,  and  delay  of  the  landlord's 
servants  in  making  repairs  duiing  the  term,  and  by  tlie  unworkmanlike 
manner  of  doing  the  work,  cannot  be  set  up  as  matter  of  recoupment  in 
an  action  for  the  rent.(8) 

72  i.  Where  a  lessor  agreed  to  put  the  barns  on  the  premises  in  re- 
pair, but  neglected  to  do  so;  held,  the  damages  of  the  lessee,  which  he 
was  entitled  to  recoup'  in  a  suit  for  rent,  were  the  amount  it  would  cost 
to  put  the  barns  in  repair,  and  not  the  detriment  which  he  suilered  by 
their  remaining  out  of  repair  during  the  term. (4) 

•  72y.  In  an  action  of  covenant  for  rent,  the  defendant  cannot  recoup 
for  damages  arising  from  violation  of  a  covenant  by  the  plaintiff  since 
the  commencement  of  suit,(5)  even  though  they  exceed  the  amount  of 
-cnt.(6Xa) 

72  k.  If  a  lessee  covenant  to  repair,  he  is  bound  upon  his  covenant, 
although  the  premises  are  burned  down  without  his  fault;  nor  can  he 
legally  quit,  though  the  premises  become  untenantable^  So,  where  he 
covenants  to  keep  in  repair,  ''saving  and  excepting  the  natural  decay 
of  the  same,"  and  to  surrender  up  at  the  end  of  the  term  in  as  good 
condition,  &c.,  reasonable  use  and  wearing  thereof  excepted. (7)(6) 


(1)  "Whitbeck  v.  Skinner,  7  Hill,  53. 

(2)  Nichols  V.  Dusenbury,  2  Coinst.  283. 

(3)  ('ram  v.  Dresser,  2  Sandf.  120. 

(4)  Dorwin  v.  Potter,  5  Denio,  306. 

(5)  Hargen  v.  Edwards,  4  Barb.  250. 

(G)  M'Oullougii  V.  Cox,  6  Barb.  386 ;  Ken- 
dall V.  Moore,  30  Maine,  327. 


(7)  Bullock  V.  Dommitt,  2  Chit.  K.  B. 
608;  Phillips  v.  Stevens,  16  Mass.  238; 
Ardent'.  Pullon,  10  Mee.s.  &  W.  321.  See 
Belcher  v.  M'Intosh,  8  Carr.  &  P.  720;  Doe 
V.  Rowlands,  9,  734. 


(a)  "With  regard  to  the  respective  liabilities  of  landlord  and  tenant  to  third  persons,  for 
neplect  to  repair,  it  has  been  held,  that  the  tenant  is  liable  for  an  injury  resulting  from  the 
v»  it  of  repair  of  the  grate  over  a  vault,  under  the  highway,  in  front  of  his  premises;  and 
the  landlord  is  not  liable,  if  the  premises  were  let  in  good  repair,  and  he  was  not  bound  by 
the  lease  to  keep  them  in  repair.     Bears  v.  Ambler,  9  Barr,  193. 

Where  a  town  was  compelled  to  pay  damages  for  an  injury  resulting  from  a  defect  in  a 
highway,  occasioned  by  th^  want  of  repair  of  a  celiar-way  constructed  in  the  sidewalk,  and 
leading  to  a  building  adjoining  thereto,  wliich  was  in  the  occupation  of  a  tenant;  held, 
the  occupant  and  not  the  owner  was  liable  to  the  town  for  sucli  damages.  But  if,  in  such 
case,  tliere  were  an  express  agreement  between  the  landlord  and  tenant,  that  tlie  former 
should  keep  the  premises  in  repair,  then,  to  avoid  circuity  of  action,  the  landlord  would  be 
liable  in  the  first  instance.     Lowell  v.  Spauluing,  4  Cush.  277. 

A  tenant  for  years  in  the  occupation  of  the  prcmise.s,  and  not  the  landlord,  is  liable  for 
the  penalty  incurred  by  a  violation  of  the  ordinance  of  the  city  of  New  York  against  any 
persons  sutfering  any  sink,  &c.,  to  run  upon  or  within  three  feet  of  any  wharf,  &c.  City,  &c.  v. 
Corlics,  2  Sandf  301. 

(h)  A  covenant  to  leave  all  buildings  now  on  the  land  binds  a  lessee  to  repair,  in  case  of 
fire.  Pasteur  y.  Jones,  Cam.  &  Nor.  194.  But  where  a  lease  contains  a  covenant,  to  deliver 
up  the  premises  at  the  end  of  the  term  in  as  good  order  and  condition  as  at  the  date  of  the 
lease,  ordinary  wear  and  tear  excepted,  but  not  to  repair  or  rebuild,  and  the  buildings  are 
destroyed  by  fire ;  the  lessee  is  not  bound  to  rebuild.     "Warner  v,  Hitchins,  5  Barb.  666. 


212  LEASE.  [CHAP.  XY. 

78.  If  a  penalty  is  annexed  to  the  covenant  to  repair,  inevitable  ac- 
cident will  excuse  from  the  former,  though  not  from  the  latter.  As 
where  one  covenanted  to  sustain  and  repair  the  banks  of  a  river,  under 
pain  of  forfeiture  of  £10.  The  banks  being  suddenly  destroyed  by  a 
great  flood,  held,  the  party  was  bound  lo  repair,  but  not  subject  to  the 
penalty. (1)  It  is  to  be  observed,  however,  that  this  was  a  case  of  loss 
by  act  of  God. 

74.  In  New  Jerse_y,  by  statute,  no  action  lies  against  any  person,  on 
the  ground  that  a  lire  began  in  a  house  or  room  occupied  by  him. 
But  this  provision  does  not  impair  the  effect  of  any  covenant.  In  Mis- 
souri, if  a  building  is  burned  or  injured  without  fault  of  the  tenant,  his 
servants,  agents  or  family,  he  is  not  responsible,  unless  the  lease  so  pro- 
vides ;  and  a  covenant  to  repair  will  not  require  a  tenant  to  rebuild. (2) 

74  o.  Sometimes  the  lessor  and  lessee  covenant  respectively  to  pay 
different  charges  connected  with  the  estate.  Thus,  a  lessor  agreed  to 
pay  all  taxes,(a)  and  the  lessee  all  other  costs,  expenses,  &c.,  and  it 
was  further  agreed  that  the  lessee  might  make  any  additions  and 
repairs  not  injurious  to  the  estate.  The  city  having  assessed  the  lessor 
for  paving  the  footway  in  front  of  the  estate,  under  the  Massachusetts 
statute  of  1795,  c.  31,  s.  2,  and  he  having  paid  the  same,  held,  he  could 
not  recover  it  i'rom  the  lessee  under  the  covenants.(8) 

75.  If  a  lessee  covenant  with  several  lessors  jointly,  that  he  will  pay 
to  each  lessor  severally  a  specified  proportion  of  the  rent,  the  interest 
of  each  lessor  will  be  several,  and  each  may  maintain  a  separate  action 
for  his  part  of  the  rent.(4) 

76.  A  lessor  of  a  steam  mill  covenanted  to  furnish  so  much  power 
every  day  in  the  year,  and  that  the  rent  should  cease  during  anj-  failure 
to  do  so.  Held,  the  suspension  of  the  rent  was  not  a  liquidation  of 
damages  for  such  failure. (5) 

77.  A  covenant  in  a  lease  to  pay  rent  during  the  term,  and  for  such 

(1)  1  Dyer,  33  a.  i      (4)  Gray  v.  Johnson,  14  N.  H.  414. 

(2)  1  N.  J.  St.  210 ;  Misso.  St.  1840-1,  26.        (5)  Fisher  v.  Barrett,  4  Cush.  381. 

(3)  Torrey  v.  Wallis,  3  Cush.  442.  | 

But  where  fixtures  attached  by  the  lessee  are  severed  by  the  fire,  and  are  carried  away  by 
the  lessee,  tlie  lessor  may  recover  their  value  in  an  action  on  the  lease.  lb.  In  Pennsyl- 
vania, seizure  and  eviction  by  public  enemies  is  a  defence  to  the  oiiliiralion  of  giving  up  the 
premises  in  repair.  Pollard  v.  Shouffer,  1  Dall.  210.  A  covenant  to  repair  Ititids  the  tenant 
only  to  suffer  no  further  dilapidation  than  results  trom  natural  causes.  If  the  house  is  old, 
he  is  merely  required  to  keep  it  up  as  such.  Harris  v.  Jones,  1  Moo.  &  R.  173.  Not  to  give 
the  landlord  a  new  house.  Young?;.  Morton,  G  Scott,  227;  Stanley  v.  Tuesgood,  3  Bing. 
N.  C.  4.  In  general,  a  tenant,  in  neglecting  to  repair,  is  guilty  of  permissive  waste.  But  a 
tenant  from  year  to  year  is  oidy  bound  to  make  ordinary  tenantable  repairs,  which  will 
keep  the  house  wind  and  watertight,  and  to  replace  what  he  breaks  or  injures.  But.  if  the 
house  is  subi^tantially  out  of  repair  or  untenantable,  it  is  said  the  tenant  is  not  bound  to 
repair,  but  ujay  quit  without  paying  rent.  4  Kent,  110  and  n. ;  Pindar  u.  Ainsley.  1  T.  R. 
312;  Mumford  v  Brown,  6  Cow.  475:  Edwards  v.  Hetherington,  7  T.  R.  117;  Collins  v. 
Barrow,  1  Moo.  &  R.  112  ;  Longv.  Filzsinmions,  1  "W. &  S.  532  ;  Belcher?;.  Mcintosh,  2  L'arr. 
&  K.  186.    See  Aldis  v.  Mason,  6  Eng.  L  &  Eqii.  391  ;   Beach  v.  Grain,  2  Comst.  66. 

Upon  covenant  to  deliver  up  the  premises  at  the  end  of  the  term  in  as  good  order,  &c., 
as  they  then  are,  or  may  be  put  into  by  the  lessor,  the  lessee  is  bound  to  make  the  repairs 
necessary  for  this  purpo.se.     Jaques  v.  Gould,  4  Cush.  384. 

(a)  A  lesrsor  ol  land,  the  ta.xes  upon  which  are  assessed  against  his  lessees,  is  liable  to  a 
vendee,  who  pays  the  taxes  under  levy  for  the  amount  so  paid,  in  the  absence  of  any  con- 
tract between  the  lessor  and  lessees,  by  which  the  latter  were  bound  to  pay  them.  Cald- 
well V.  Moore,  1  Jones,  58. 


CHAP.  XV.]  LEASE.  213 

further  time  as  the  les.see  sliall  occupy,  binds  him  to  pay  rent  accruing 
after  the  expiration  of  the  time  siipuhited  ;  and  a  surety  for  the  lessee 
incurs  the  same  liability  .(a)  Thus,  a  lease  was  made  (or  one  year,  the 
lessee  paying  a  certain  rent  per  annum,  and  at  the  same  rate  for  any 
shorter  period.  The  lessee  covenants  to  pay  said  rent  in. quarterly 
payments,  and  to  pay  the  rent  as  above  stated,  and  all  LiiXes  and  duties 
levied  and  to  be  levied  thereon,  during  the  term,  and  for  such  further 
time  as  he  sh:dl  occupy.  On  the  back  of  the  lease,  the  defendant 
guarantied  performance  of  the  within  covenants,  and  the  lessee  by 
another  writing  agreed  to  quit  on  reasonable  notice,  if  the  lessor  should 
wish  to  sell  or  pull  down  the  house.  Held,  the  covenants  bound  both 
the  defendant  and  the  lessee,  so  long  as  the  latter  occupied,  even  beyond 
the  year ;  and  that  the  defendant  was  liable  for  several  quarters'  rent, 
although  not  notified  at  the  end  of  each  quarter,  having  suffered  no 
damage  from  the  want  of  such  notice.(l) 

78.  In  this  connection  may  properly  be  considered  the  subject  oHhe 
renewal  of  leases.  It  is  said,  in  case  of  church  leases,  or  those  made 
by  trustees  of  charities,  which  are  usually  renewable  for  a  fine  or  in- 
creased rent,  although  the  lessors  are  not  legally  bound  to  renew,  yet 
the  tenant  has  in  equity  a  transferable  interest  in  this  privilege.(2)  A 
landlord  is  not  bound  to  renew  the  lease  without  an  express  covenant 
to  do  it.  And  covenants  for  continual  renewal  are  not  favored,  for  they 
tend  to  create  a  perpetuity,  and  have  been  said  to  be  equivalent  to  an 
alienation  of  the  inheritance.  Hence,  in  the  case  of  trustees  of  a  charity, 
they  have  been  held  invalid  in  Chancery.  But,  if  explicit,  the  weight 
of  authority  is  in  favor  of  their  validity.  Covenants  of  renewal  run 
with  the  land,  and  bind  a  grantee  of  the  reversion.  A  covenant  to 
renew  implies  the  same  term  and  rent,  and  perhaps  the  same  condi- 
tions. But  a  covenant  to  renew,  upon  such  tenns  as  may  be  agreed  on, 
is  void  for  uncertainty.  An  agreement  made  while  the  tenant  is  in 
possession,  for  a  subsequent  increased  rent,  does  not  constitute  a  new 
tenaucy.(3)(6) 

(1)  Salisbury  v.  Hale,  12  Pick.  416.  |  Simpson  v.  Clayton,  4  Bin;^.  N.  753  ;  Sirap- 

(2)  Pliyle  V.  Warden,  6  Paige.  268.  son  v.  Clayton,  6  Scott,  469 ;  Hanioy  v.  Har- 

(3)  4  Kent,  103;  G-eeckie  v.  Monk,  1  Carr.  ney,  5  Beav.  134;  Richards  v.  Richards,  2  Y. 
&  K.  307  ;  Rut^jers  v.  Hunter,  6  John.  Cha.  &  Coll.  Cha.  419.  See  Cottee  v.  Richardson, 
215  ;    Whitlock  v.    Duffield,  1  Hofifm.  110 ;  I  8  Eng.  L.  &  Equ.  498. 

(a)  A  tenant  holding  over  is  bound  by  all  covenants  applicable  to  his  new  situation. 
De  Young  v.  Buchanan,  10  Gill  &  J.  149.  And  in  case  of  a  lease  which  is  void,  the  law 
implies  a  similar  parol  contract  as  to  the  rent.  Anderson  v.  Critcher,  11.  450.  So  where 
the  assignee  of  a  void  lease  holds  tiirough  the  term,  paying  the  rent  reserved  ;  assumpsit 
lies  against  iiim  upon  an  implied  promise  to  repair,  conformably  to  the  covenants.  Beale 
V.  Sanders,  5  Scott,  58. 

But  a  tenant  holding  over  does  not  of  course  hold  on  the  same  terms  as  before.  Elgar  v. 
Watson,  1  C.  &  Mar.  494.  In  case  of  lease  to  A  and  B,  if  A  holds  over  with  B's  consent; 
both  are  liable  for  the  rent.  Whether,  if  without  such  consent,  qu.  Christy  v.  Tancred,  9 
Mees.  &  W.  438. 

(b)  The  renewal  of  a  lease,  with  an  agreement  for  performance  of  certain  work  stipulated 
for  in  the  former  lease,  is  not  a  waiver  of  damages  for  non-compliance  with  the  turmer  lease. 
Walker  v.  Seymour,  13  Mi.s.  592.  A  covenant  to  renew  a  lease  at  a  certain  rent  does  not 
carry  with  it  any  of  the  covenants  in  the  old  lease.     Willis  v.  Astor,  4  Edw.  Ch.  594. 

Demise  by  A  to  B,  for  55  years,  in  consideration  of  £530,  subject  to  a  yearly  rent  of 
£84.  covenant  to  repair,  &c.  The  consideration  being  unpaid,  B  assigned  to  A,  by  way  of 
mortgage,  the  whole  of  the  residue  of  the  term,  subject  to  the  rent  and  covenants,  and  with 
a  power  of  sale.     Notice  of  sale  having  been  given  by  A,  pursuant  to  the  power,  ia  con- 


214  LEASE.  [CHAP.  XT. 

79.  In  Ohio,(l)  it  is  said,  ^perpetual  leases^  renewable  forever,  are  very 
common,  but  are  mere  chattels.  But,  by  a  late  statute,  tbey  are  invested 
with  all  the  incidents  of  estates  in  fee,  in  respect  to  descent,  distribution^ 
and  sales  upon  legal  process.  But  in  Pennsylvania,  where  a  lease  was 
made  for  twelve  months,  and  so  from  year  to  year,  at  the  pleasure  of 
both  parties,  with  a  covenant  by  the  lessee  not  to  assign  without  per- 
mission under  seal,  and  a  proviso  that  the  lessor  should  reimburse 
money  laid  out  in  improvements ;  held,  this  passed  no  freehold.(2) 
It  would  be  otherwise,  it  seems,  where,  upon  a  long  lease,  the  landlord 
covenants  to  pay  for  improvements,  or,  if  not,  to  convey  in  fee. (3) 

80.  Where  a  lease  is  made  to  a  person,  his  heirs  and  assigns,  to  con- 
tinue while  he  pays  the  rent,  and  he  covenants  for  himself  and  his 
heirs ;  on  failure  to  perform  the  covenants,  the  lessor  may  treat  the 
lease  as  forfeited,  but  not  the  lessee.(4) 

81.  How  far  a  tenant  himself  may  cause  the  implied  renewal  of  a 
lease,  by  holding  over  after  his  term,  will  be  more  particularly  con- 
sidered hereafter.(a)  In  Connecticut  it  is  held,  that  if  a  lessee  for  one 
year  hold  over,  this  is  a  renewal  of  the  lease,  (of  course  at  the  option 
of  the  lessor)  for  the  same  term.  The  same  consequence  follows  where 
a  sub-tenant  occupies  ;  or,  having  occupied,  abandons  the  posses- 
sion. (5) 

81  a.  Where  a  lease  for  ten  years  contained  a  covenant  of  renewal  for 
ten  3'ears,  if  the  parlies  could  agree  upon  the  rent,  and  the  "lessor  coven- 
anted, in  ease  they  did  not  so  agree,  to  pay  for  improvements  which 
the  lessee  should  place  upon  the  premises ;  and  the  lessee  covenanted  in 
the  like  case,  that  at  the  end  of  the  term,  "  upon  the  lessor's  paying  for 
the  improvements  as  aforesaid,"  he  would  peaceably  surrender  posses- 
sion to  the  lessor  and  his  assigns;  held,  the  lessor's  right  to  demand 
possession  at  the  expiration  ol  the  term  was  not  qualified  by  the  obli- 
gation to  pay  for  the  improvements,  and  therefore,  that  his  assignee, 
(there  being  no  renewal  of  the  lease,)  could  recover  in  ejectment,  al- 

(1)  "Walk.   Tntro.   2'78  ;  Swan's  Dig.    289. 1      (4)  Folts  v.  Huntley,  7  "Wend.  210. 

See  Loring  y.  Melendy,  11  Ohio,  355.  (5)  Bacon  v.  Brown,  9  Conn.    338.     See, 

(2)  Krause,  2  "Wliart.  398.  also,  Dorrill  v.  Stephens,  4  M'Cord,  59. 

(3)  Eli  V,  Beaumont,  5  S.  &  R.  124.  I 

sideration  of  £500,  lie  by  deed  "bargained,  sold,  assigned,  transferred  and  set  over"  to  the 
defendant,  the  premises  described  in  the  lease,  to  hold  for  all  the  residue  of  the  terra,  dis- 
charged from  the  mortgage  debt,  but  subject  to  the  payment  of  the  yearly  rent  and  to  the 
covenants  in  the  lease;  and  the  defendant  covenanted  to  pay  the  rent  and  perform  the  cove- 
nants. The  defendant  then  entered.  Held,  although  the  term  was  merged  by  the  mort- 
gage, the  effect  of  the  conveyance  was  to  create  a  new  term  of  the  same  duration  as  the 
unexpired  part  of  the  old  term,  and  that  the  defendant  was  liable  upon  the  covenants  to 
pay  the  rent,  and  to  perform  the  repairs.     Cottee  v.  Richardson,  8  Eng.  L.  &  Equ.  498. 

"Where  trustees  leased  a  part  of  the  estate,  with  a  covenant  to  renew  the  lease,  or  to  pay 
for  certain  erections,  which  the  lessee  covenanted  to  make,  on  the  termination  of  the  lease ; 
held,  on  refusal  of  the  trustees  to  renew,  the  trust  estate  was  liable  to  pay  for  the  erections. 
Robinson  t.  Kettletas,  4  Edw.  Ch.  67. 

In  Delaware,  (Rev.  Sts,)  a  lease  is  considered  as  renewed,  unless  three  months"  notice  be 
given  before  its  termination. 

On  a  lease  at  an  annual  rent  of  $550^  was  indorsed  an  extension  of  the  term  at  a  rent  of 
$600,  and,  during  the  extended  term,  another  indorsement  was  made,  providing  that  the 
"within  lease"  be  "extended  the  further  period  of  one  year  without  alteration."  Held, 
the  terms  "within  lease"  referred  to  the  prior  indorsement  as  well  as  the  original  lease,  and 
that  a  yearly  rent  of  $600  was  thereby  reserved.     Cram  v.  Dresser,  2  Sandf  120. 

(a)  See  ch.  19.  In  Kentucky,  if  a  tenant  holds  over,  lie  is  liable  to  the  same  rent. 
"Wliittemore  v.  Moore,  9  Dana,  315. 


CHAP.  XV.]  LEASE.  215 

tliough  the  improvements  were  not  paid  for ;  and  that  the  words, 
"  uj)oii  the  les.«or's  paying,  &;c.,"  did  not  constitute  a  condition  precedent 
to  the  lessor's  right  to  have  possession,  after  the  lease  had  expired.(l) 

81  h.  Where  premises  were  leased  to  two  partners  for  a  year,  with  a 
right  of  renewal,  and  before  the  year  expired  the  |)artnersliip  was  dis- 
solved, and  one  partner  remained  in  possession,  hcld'0\'er  aft<.T  the 
expiration  of  the  lease,  and  applied  for  a  renewal,  which  was  refused 
by  the  landlord  ;  held,  an  action  for  possession  might  be  maintained 
by  the  landlord  against  the  partner  in  possession,  without  joining  the 
other.(2) 

81  c.  It  was  agreed,  that  the  tenant  should  get  the  house  at  the  price 
herein  stated,  for  one  year  after  his  present  year  expires,  and  is  to  have 
the  preference  each  succeeding  year  thereafter.  Held,  this  did  not 
create  a  tenancy  from  year  to  year,  entitling  the  tenant  to  a  legal  notice 
to  quit. (8) 

81  d.  Where,  simultaneously  with  the  execution  of  a  lease  for  years, 
the  landlord  stipulates,  that  at  the  end  of  the  term  he  will  renew  the 
lease  or  pa}''  for  the  buildings  erected  by  the  tenant,  and  at  the  end  of 
the  term  he  tenders  a  renewal,  which  the  tenant  refuses  to  accept ;  the 
landlord  may  recover  possession  Avithout  paying  for  the  buildings.(4) 

81  e.  An  extension  of  a  term,  subject  to  the  covenants  in  the  original 
lease,  will  apply  such  covenants  to  subjects  within  their  scope  existing 
at  the  extension,  although  they  were  unknown  when  the  terra  was 
created.(5) 

82.  It  is  the  general  rule,  that  in  any  action  between  landlord  and 
tenant,  the  latter  is  precluded  or  esto2yped{a)  by  his  lease  or  occupation, 
from  disputing  the  title  of  the  former  to  the  land,  or  setting  up  the  ad- 
verse title  of  another,  acquired  by  him  since  the  lease,  cither  in  plead- 
ing or  by  evidence.  The  principle  is  said  to  be  not  a  technical  one, 
but  founded  in  good  faith  as  well  as  public  policy,  and  so  firmly  es- 
tablished, that  "you  may  as  well  attempt  to  move  a  mountain,"  As  a 
consequence,  or  perhaps  more  properly  a  part,  of  the  same  rule,  a  third 
person,  having  title  to  the  land,  paramount  to  that  of  the  lessor,  cannot 
recover  rent  of  the  tenant,  until  he  has  actually  entiTcd,  or  made  an 
effectual  claim  under  his  title.  An  action  for  rent  does  not  lie  in  favor 
of  a  stranger  for  the  purpose  of  trjnng  his  title,  or  by  one  of  two  liti- 
gating parties  claiming  the  land;  such  action  not  depending  on  the 
validity  of  the  plaintiff's  title,  but  on  a  contract  between  the  parties, 
express  or  implied.  It  is  said,  the  only  exception  to  this  principle  of 
estoppel,  is  wliere  it  would  work  a  fraud  upon  the  lessor  or  the  com- 
monwealth. It  applies  not  merely  to  a  tenancy^  strictly  so  called,  but 
to  any  occupation  by  penaission  of  another.  So,  it  applies  alike  to  an 
action  for  rent,  for  recovery  of  the  premises  on  the  ground  of  forfeiture 
or  otherwise,  or  for  mesne  ]-)rofits.  So,  though  the  lease  be  void,  and 
so  appear  upon  the  plaintiff's  own  evidence;  as,  for  instance,  where  it 
is  executed  b}'  attorney,  but  not  in  the  name  of  the  principal.     So  also 

(1)  Tall  man  v.  Coffin,  4  Comst.  134.  (4)  Pearce  v.  Golden,  8  Barb.  .522. 

(2)  Gelieebe  v.  Stanley,  1  La.  Ann.  17.  (5)  Kearney  v.  Post,  1  Saudt.  105. 

(3)  Crawford  v.  Morris,  5  Gratt.  90. 

(a)  An  estoppel  is  a  restraint  or  impediment,  imposed  by  the  policy  of  the  law,  to  pre- 
clude a  parly /7-o?»  averring  the  truth.     Gibson  v.  Gibson,  15  Mass.  110. 


216 


LEASE. 


[CHAP.  XV, 


it  is  applicable,  not  only  to  the  lessee  or  lessor  himself,  but  to  any  one 
claiming  under  him,  or  in  continuation  of  his  estate ;  as  to  an  assignee, 
sub-lessee,  or  purchaser ;  or  the  wife  of  a  deceased  tenant ;  or  an  as- 
signee or  the  heir  of  the  lessor.  So,  as  between  heir  and  adniinistrator.(a) 
So  if  a  man  take  a  lease  of  his  own  land,  or  land  of  which  he  has  pos- 
session, he  is  concluded,  though  it  would  be  otherwise,  in  ihe  former 
case,  if  the  lease  were  merely  of  the  herbage.  So,  by  agreeing  to  hold 
under  the  true  owner,  the  adverse  possession  of  an  occupant  ceases. 
By  disclaiming  the  landlord's  title,  the  lessee  forfeits  his  lease  or  be- 
comes a  trespasser,  and  is  not  entitled  to  notice  to  quit.  Bat  the  prin- 
ciple has  been  held  not  applicable  to  aparo/  disclaimer.  On  the  other 
hand,  the  tenant  cannot  show  a  parol  admission  by  the  landlord  of  an 
adverse  title.(l)(i) 

83.  Land  of  the  plaintiff,  in  the  occupation  of  the  defendant  as  lessee, 


(1)  Cook  V.  Loxley,  5  T.  R.  4 ;  Balls  v. 
Westwood,  2  Camp.  11;  De  Lancey  v.  Ga 
Nun,  12  Barb.  120;  Binney  v.  Chapman,  5 
Pick.  127;  Galloway  v.  Ogle,  2  Binn.  468; 
Codman  v.  Jenkins,  14  Mass.  93;  Marley  v. 
Rodgers,  5  Yerg.  217;  Ankeny  v.  Pierce, 
1  Bre.  202;  Love  v.  Dennis,  Harp.  70;  Beyer 
V.  Smith,  5  Watts,  55;  Co.  Lit.  47  b,  48  a  & 
n.  12;  Congregational,  &c.  v.  Walker,  18 
Verm.  600 ;  King  v.  Murray,  6  Ired.  62 ; 
Greeno  v.  Munson,  9  Verm.  37 ;  Plielan  v. 
Kelly,  25  Wend.  389;  Doe  v  Barton,  11  Ad. 
&  Ell.  307;  Lunsford  v.  Alexander,  4  Dev. 
&  B.  40;  Failing  v.  Schenck,  3  Hill,  344; 
Cooper  V.  Smitli,  8  Watts,  536;  Duke  v. 
Harper,  6  Yerg.  280;  Jackson  v.  Davis,  5 
Cow.  123;  Cobb  v.  Arnold,  8  Met.  398;  Mc- 
Intyre  v.  Patton,   9  Humph.   447 ;  Burke  v. 


Hale,  4  Eng.  328 ;  Newman  v.  Mackin,  13 
Sm.  &  M.  383  ;  University,  &c.  v.  Joslyn,  21 
Verm.  52;  Kinney  v.  Doe,  8  Blackf.  350; 
Doe  v.  Challis,  6  Eng.  L.  &  Equ.  249;  Lans- 
dell  v.  Gower,  8,  317;  Falkner  v.  Beers,  2 
Doug.  117;  Byrne  v.  Beeson,  1,  179;  Kinge 
V.  Lachenour,  12  Ired.  180;  Loi-kwood  v. 
Walker,  3  Mc'L.  431 ;  Kendall  v.  Carland,  5 
Cush.  74;  Blantin  v.  Wliitaker,  11  Humph. 
313;  Gray  v.  Jolmson,  14  N.  H.  414;  Hill 
V.  Hill,  4  Barb  419;  Sharpe  v.  Kelley,  6 
Denio,  431  ;  Read  v.  Thompson,  5  Barr,  3^27  ; 
Fortier  v.  Bellanoe,  5  Gilm.  41  ;  Sneed  v. 
Jenkins,  8  Ired.  27 ;  Dolby  v.  lies,  11  Ad.  & 
Ell.  333;  Doe  v.  Long.  9  Carr.  &  P.  773; 
Woodward  v.  Brown,  13  Pet.  1  ;  Walden  v. 
Bodley,  14,  156;  Mann  v.  Gwinn,  8  Gratt. 
Index;  Dela.  Rev.  Sts.  366. 


(a)  Where  an  administrator  leased  the  mansion-house  of  his  intestate,  while  the  heirs 
were  minor.s,  and  after  the  lease  expired  the  tenant  held  over,  under  a  claim  of  an  agree- 
ment with  the  administrator  to  purchase ;  held,  the  lease,  though  made  without  authority, 
was  to  be  assumed  to  have  been  made  for  the  benefit  of  the  heirs, — the  right  of  action  for 
for  use  and  occupation  was  in  them  ;  and  they  were  not  to  be  affected  by  tiie  tenant's  claim  of 
title,  until  they  were  proved  to  have  had  notice  of  it  after  their  majority.  Burk  v.  Osborn, 
9  B.  Mon.  579. 

The  principle  has  also  been  held  applicable,  as  between  trustee  and  cestui  que  trust.  Wal- 
den V.  Badley,  14  Pet.  156. 

So  a  party  whose  land  is  sold  by  execution,  while  in  possession,  is  a  qucisi  tenant  of  the 
purchaser,  and  cannot  dispute  his  title.  Aliter  where  he  is  not  in  possession.  Wood  v. 
Turner,  7  Humph.  517-18,  685.  So,  where  land  is  sold  on  execution,  and  after  the  sale  the 
original  owner,  who  was  not  in  possession  at  the  time  of  the  sale,  rents  the  land  to  a  third 
person;  the  relation  of  landlord  and  tenant  exists  between  the  parties,  and  the  tenant,  who 
purchased  the  title  of  the  purchaser  at  execution,  cannot  set  up  such  title  against  the  origi- 
nal owner.     lb. 

So  a  purchaser,  entering  under  an  executory  contract,  becomes  a  quasi  tenant,  and,  upon 
cancelling  the  contract,  is  estopped  from  setting  up  a  title  under  another,  hostile  to  that  of 
his  vendor.  Kirk  v.  Taylor,  8  B.  Mon.  262.  See  Hall  v.  Stewart,  2  Jones,  211 ;  ace.  Hill  v. 
Hill,  4  Barb.  419. 

(&)  In  Connecticut,  the  plaintiff  in  a  summary  process  against  a  tenant  need  not  prove 
himself  even  to  have  been  owner  of  the  land.  And,  though  a  grantee  of  the  lessor  may 
maintain  such  action,  especially  if  the  tenant  has  attorned;  yet,  if  brought  by  the  lessor, 
his  conveyance  of  the  reversion  will  be  no  defence.  White  v.  Bailey,  14  Conn.  271.  The 
principle  of  estoppel  applies  to  one  who  is  admitted  to  defend  against  an  action  of  eject- 
ment with  the  tenant  in  possession.  Belfour  v.  Davis,  4  Dev.  &  B.  300.  Where  a  lease 
purports  to  be  made  by  virtue  of  a  power  contained  in  a  will;  the  lessee  is  estopped  to 
deny  the  execution  ol  such  will.     Bringloe  v.  Goodson,  8  Scott,  71. 


CHAP.  XV.]  LEASE.  217 

was  levied  upoQ  by  a  creditor  of  the  ])laiiitilT,  and  the  defendant  evict- 
ed. The  defendant  afierwards  occupied,  as  lessee  of  the  creditor,  and 
then  purchased  the  fee  from  him.  The  land  was  afterwards  levied 
upon  by  another  creditor,  the  former  levy  being  deleclivc  and  void. 
The  j>laintiir  brings  an  action,  for  the  rent  accruing  between  the  two 
levies.  Held,  as  the  defendant  had  occupied,  either  asJessce  of  the 
first  creditor,  or  as  owner,  there  was  no  contract,  express  or  implied, 
between  him  and  the  plaintiff;  that  the  remedy  of  the  latter  was  against 
the  first  creditor;  and  this  action  would  not  lie.(l) 

84.  A  having  leased  land,  with  a  building  upon  it,  to  B,  entered  into 
a  negotiation  with  C  for  a  sale  of  the  land  alone  to  him.  It  was  left  to 
referees  to  settle  the  price,  and  A  put  into  their  hands  a  deed,  to  be  deliv- 
ered to  C  with  the  award.  A  was  to  remove  the  building  by  a  certain  day. 
The  referees,  having  awarded  a  certain  price,  delivered  the  deed  to  C, 
which  was  recorded;  but  A  excepted  to  the  award,  refused  the  price, 
tendered  the  penalty  agreed  on,  and  denied  that  the  deed  passed  any 
title.  C  never  notified  A  to  remove  the  building,  but  notified  B  to 
quit,  at  the  time  fixed  for  removing  the  building,  or  pay  rent  to  him 
subsequently.  B  continued  to  occupy,  and  expressly  promised  to  pay 
rent  to  A,  A  indemnifying  him  against  C's  claim,  and  actually  paid 
rent  to  A  for  a  period  subsequent  to  the  award;  but  paid  a  subsequent 
instalment  to  C,  receiving  from  him  an  indemnity  against  A.  For  the 
latter  rent,  A  brings  an  action  against  B.  Held,  the  above  facts  fur- 
nished no  defence  to  such  action. (2) 

85.  A  had  agreed  to  become  tenant  to  C  until  a  certain  time,  at  such 
rent  as  the  arbitrators  should  award.  In  an  action  for  use  and  occupa- 
tion by  C  against  A;  held,  A  was  not  bound  by  an  implied  contract  to 
pay  rent  to  C,  after  the  time  stipulated  ;  and  that  the  title  could  not  be 
thus  tried.(3) 

85  u.  A  demised  land  to  B,  who  paid  him  rent.  C  afterwai-ds  dis- 
puting A's  title,  it  was  left  to  arbitrators,  who  awarded  in  C's  favor. 
A  then  gave  up  the  title-deeds,  and  by  his  authority  C  directed  B  to 
pay  rent  to  himself,  which  he  did.  A  then  distrains  for  the  rent. 
Held,  he  had  no  claim  to  it,  being  estopped  by  the  acts  above  stated. (4) 

86.  A,  holding  a  lease  of  certain  land,  took  possession  from  B  of  a 
house  which  B  had  erected  before  A  had  a  lease,  upon  adjoining  waste 
land,  to  which  B  had  no  title.  A  leases  the  house  to  C.  In  eje°  tment 
for  the  house  by  A's  landlord  against  C ;  held,  C  was  estopped  to  deny 
the  plaintifl's  title.(5) 

87.  Complaint  under  the  Massachusetts  Statute,  1825,  c.  89,  by  a 
landlord  against  his  tenant,  to  recover  possession  of  a  piece  of  land. 
Held,  the  tenant  could  not  set  up  as  a  defence,  that  the  landlord  was  dis- 
seized by  his  refusal  any  longer  to  pay  reilf.(6) 

87  a.  A,  having  been  in  peaceable  and  adverse  possession  of  land 
for  twenty  years,  by  way  of  compromise  of  a  claim  made  upon  him 
for  rent,  gives  a  note  to  B.  In  a  suit  thereupon,  held,  the  above  facts 
constituted  no  legal  defence.(7) 


(1)  Allen  I'.  Tliayer,  17  Mass.  299. 

(2)  Biiiney  v.  Chapman,   5  Pick.  124.     See 

Jackson  v.  Welden,  3  John.    283 ; v. 

Davis.  5  Cow.  123. 

(3)  Boston  V.  Binney,  1  Pick.  1. 


(4)  Downs  V.  Cooper,  2  Ad.  &  Ell.  K  S. 
256. 

(5)  Doe  V.  Fuller,  1  Tyr.  &  G.  17. 

(6)  Sacket  V.  Wheaton,  17  Pick.  103. 

(7)  Cobb  V.  Arnold,  8  Met.  403. 


218 


LEASE. 


[CHAP.  XY. 


87  h.  The  land  of  A  being  levied  on  by  an  attachment  at  the  suit  of 
B,  A  conveyed  the  same  to  C,  under  circumstances  supposed  to  indi- 
cate an  intention  to  defraud  his  creditors.  C  rented  the  land  to  D;  B 
then  obtained  a  judgment  against  A,  and  the  land  was  sold  to  satisfy  it. 
C  brought  an  action  against  D  to  recover  possession.  Held,  if  D 
showed  no  title  a^cquired  subsequent  to  the  commencement  of  his 
tenure,  he  could  not  defeat  hy  setting  up  such  fraudulent-conveyance.(l) 

88.  Inasmuch  as  a  tenant  cannot  even  defend  against  an  action  at 
law,  by  denying  the  title  of  the  lessor;  a  fortiori  equity  will  not  aid 
him  in  such  a  denial.  Thus  A  took  possession  of  land,  as  the  tenant 
of  B.  B,  the  term  having  expired,  demanded  possession,  and  brought 
a  process  of  forcible  entrj^,  upon  which,  however,  A  was  finally  ac- 

,  quitted.  B  then  brought  ejectment  against  A,  who  purchased  an  ad- 
verse title  of  C.  A  files  a  bill  in  equity  for  an  injunction  against  the 
suit.  Held,  the  acquittal  of  A  proved  nothing  as  to  the  title  of  the 
land ;  that  the  purchase  of  an  adverse  title,  or  disclaimer  of  that  of 
the  lessor,  was  a  forfeiture,  from  which  the  statute  of  limitation  would 
run  ;  but,  until  the  legal  time  of  limitation  expired,  A  could  not  dis- 
pute the  landlord's  title  at  law,  nor  have  relief  in  equity. (2) 

89.  The  principle  of  estoppel  does  not  applj^  if  waived  by  the  land- 
lord, for  whose  benefit  it  is  adopted.  So  it  does  not  apply,  if  a 
tenant  has  in  any  way  ceased  to  stand  in  that  relation.  The  principle 
is  said  to  have  a  present,  not  a  future  operation;  not  being  enforced,  for 
instance,  where  the  lease  is  ended,  or  the  landlord  transfers  the  rever- 
sion, or  the  tenant  has  restored  possession,  or  obtained  a  decree  for  the 
title  ;  or  where  he  disclaims  the  landloi'd's  title,(a)  and  holds  over  ;  or 
a  judgment  in  ejectment(6)  has  been  rendered  against  him,  or  he  has 
been  evicted  by  an  adverse  claimant.  But  mere  payment  of  rent  to  a 
stranger,  claiming  the  land,  will  not  be  sufiicieut.(3)(c)     It  is  said,  "  by 


(1)  Randolpli  v.  Carlton,  8  Ala.  606. 

(2)  Pay  ton  v.  StitJi,  1  Pet.  486. 

(3)  Jackson,  y.    Rowland.  6  "Wend.  666; 
-V.Davis,   5    Cow.    123;   Presbyterian, 


&c.  V.  Picket,  "Wright,  57  ;  Avery  v.  Baruum, 
lb.  577  ;  Boston  V.  Biniiev,  11  Pick.  8;  Johns 
V.  Church,  12,  561;  1  Mar  99,  330;  2,  243; 
Fowler  v.  Cravens,  3  J.  J.  Mar.  429 ;  Logan 
V.  Steel,  6  Mon.  105 ;  Maverick  v.  Gibbs,  3 


M'Cord,  211;  Greeno  v.  Munson,  9  Verm. 
37  ;  Hall  v.  Dewey,  10,  593;  Swift  v.  Dean, 
11,  323;  Nerhooth  v.  Althous,  8  Watts, 
427;  Newell  v.  Gibb.s,  1  "W.  &  Ser.  496; 
Belfour  v.  Davis,  4  Dev.  &  B.  300 ;  Hough 
V.  Dumas,  lb.  328 ;  Bullard  v.  Copps.  2 
Humph.  409 ;  Agar  v.  Young,  1  C.  &  Mar. 
78. 


(a)  In  which  case,  if  the  landlord  has  knowledge  of  such  disclaimer,  the  possession  is  ad- 
verse, and  the  landlord  cannot  sell  or  lease  the  premises  while  so  adversely  held.  Stephen- 
son V.  Richmond,  11  Humph   591. 

(fe)  In  Illinois,  Missouri  and  New  Jersey,  where  a  tenant  is  sued  in  ejectment  by  a 
stranger,  lie  is  required,  under  a  penalty,  to  give  notice  of  it  to  the  landlord.  Illin.  Rev. 
L.  676  ;   Miss.  Sts.  376;   1  N.  J.  L.  192. 

(c)  "Where  a  tenant  pays  the  rent,  after  the  expiration  of  the  year,  which  was  due  at  its 
close;  in  an  action  by  tlie  landlord  for  possession,  such  payment  will  not  estop  him  from  show- 
ing that  the  landlord's  tiile  was  extinguished  during  the  year.  Randolph  v.  Carlton,  8 
Ala.  606. 

A  parol  agreement  bj  a  tenant  in  possession,  at  the  death  of  the  landlord,  to  pay  rent  to 
one  claiming  to  be  guardian  of  the  remainder-man,  does  not  estop  him  from  denying  the 
title  of  the  latter.     Siokes  v.  McKibbin,  1  llarr.  (Penn.)  267. 

In  ejectment,  evidence  of  former  admissions  of  the  defendant's  father,  that  he  was  tenant 
of  the  plaintiff,  accompanied  by  evidence  that  the  defendant  resided  on  the  land  wjth  his 
deceased  father,  and  had  remained  there  ever  since,  will  not  estop  the  defendant,  claiming 
merely  by  his  own  possession,  from  denying  the  plaintiff's  title.  Emery  v.  Harrison,  1 
Harr.  317. 


CHAP.  XV.] 


LEASE. 


219 


the  making  of  the  lease  the  estoppel  doth  grow,  and  consequently  by 
the  end  ol'  the  lease  the  estoppel  determines."  It  is  also  said,  that 
whether  one,  who  receives  possession  i'rom  another,  is  estopped  from 
claiming  title,  must  depend  upon  the  inquiry,  whether  the  claim  at- 
tem})ted  to  be  set  up  is  consistent  with  the  contract  under  which  the 
possession  was  taken.(l)  Nor  does  the  principle  apjjl^'Iathc  case  of  a 
defective  conveyance  in  fee.(2)(a)  Nor  where  the  estoppel  is  midual. 
So  a  tenant  may  purchase  the  hmdlord's  estate  sold  on  execution.  If 
he  buy  the  whole,  the  rent  is  entirely  extinguished  ;  if  a  part,  it  is  ex- 
tinguished pro  tanto.iP)  So  if  A,  being  in  possession,  acknowledges 
the  title  of  B,  or  attorns  to  him  ;  A  is  still  not  est()[)ped  to  .show 
that  he  acted  under  a  wrong  belief  as  to  B's  title.(8)(c) 

89  a.  So,  it  has  been  held  that  in  an  action  for  rent,  the  tenant  may 
prove  a  verbal  promise  of  the  plaintiff  that  he  would  claim  no  rent  if 
the  title  was  in  another,  and  that  such  is  the  fact.(4) 

89  h.  Where  a  person  is  induced  to  accept  a  lease  by  false  represen- 
tations, promises  -and  threats,  he  may  afterwards  dispute  the  lessor's 
title,  esj)ecially  when,  at  the  time  of  accepting  the  lease,  the  lessee  was 
in  quiet  occupancy  of  the  premises.(5)     And  it  makes  no  difference,  in 


(1)  Baskin  V.  Seeclirist,  6  Barr,  154.  See 
Isaac  V.  Clark,  2  Gill,  1 ;  Miller  v.  Bousadon, 
9  Ala.  317. 

(2)  Co.  Lit.  47  b  ;  Claridge  v.  M'Kenzie,  4 
Scott,  n.  796;  Ripley  v.  Tale,  19  Verm.  156. 

(3)  Hughes  V.  Trustees,  &c.,  6  Pet.  369 ; 
Kenada  v.  Gardner,  3  Barb.  589.  See  "Walton 
V.  Newson,  1  Humph.  140  ;  Chilton  v.  Nib- 


lett,  3,  404;  Love  v.  Edmondston,  1  Ired. 
152;  Page  v.  Hill,  11  Mis.  149;  Dikeman  v. 
Parish,  6  Barr,  210. 

(4)  Nellis  V.  Lathrop,  22  Wend.  121; 
Washington  v.  Conrad,  2  Humph.  562  ;  Doe 
V.  Brown,  7  Ad.  and  KU.  447.  See  Doe  v. 
Evrington,  6  Bing.  N.  79. 

(5)  Wood  V.  Chambers,  3  Rich.  150. 


(a)  A  sold  and  conveyed  to  B,  and  remained  in  possession.  After  his  death  his  widow 
also  remained  in  possession.  The  estate,  after  the  sale  to  B,  was  sold  on  execution  to  C, 
and  A's  widow  took  a  lease  from  G.  Held,  the  principal  of  estoppel  applies  only  to  the  re- 
lation of  landlord  and  tenant  created  hy  contract,  anA  not  to  that  created  b^'  operation  of  law  ; 
that  the  widow  was  the  lawful  tenant  of  C;  and  that,  the  possession  of  C  having  been 
therefore  continuous  for  seven  years,  the  Tennessee  act  of  1819,  c.  28,  vested  in  him  the 
title.     Vance  v.  Johnson,  10  Humph.  214. 

Where  one  enters  into  possession  under  a  parol  contract  of  purchase,  pays  a  portion  of  the 
purchase-motiey  in  advance,  and  is,  by  the  contract,  to  receive  a  deed  upon  furnishing  cer- 
tain security  for  tiie  remainder,  which  security  is  offered,  but  the  vendor  refuses  to  convey; 
the  purchaser  may  claim  adversely  to  the  vendor;  and  his  possession,  if  open  and  e.xclu- 
aive,  accompaniod  by  claim  of  title,  will  avoid  a  deed,  executed  by  the  vendor  to  a  third 
person,  subsequent  to  the  performance  of  the  contract  on  the  part  of  tlio  purchaser. 
Ripley  v.  Yale,  19  Verm.  156. 

And,  even  if  the  purchaser  could  be  considered  as  tenant  at  will  to  the  vendor,  until  the 
completion  of  the  contract ;  yet,  if  he  ofler  to  perform  the  contract  on  his  part,  and  the 
vendor  refuse  to  convey,  and  the  purchaser  thereupon  give  notice  to  the  vendor  that  he 
shall  '■'hold  on  to  the  land;"  the  possession  of  the  purchaser  becomes  adverse,  and  will 
avoid  a  deed  subsequently  executed  by  the  vendor  to  a  third  person. 

A  covenanted  to  make  and  deliver  to  B,  at  the  end  of  a  year,  "a  good  and  sufficient 
deed,  with  covenants  of  warranty,"  of  a  farm  then  in  the  posses.sion  of  B;  all  the  green 
grain  growing  in  the  ground  at  the  time  of  executing  the  deed  "  to  pass"  to  B.  B  cove- 
nanted to  pay  therefor  $35  per  acre,  with  interest  from  a  day  prior  to  the  date  of  the  con- 
tract. A  afterwards  tendered  the  deed,  pursuant  to  his  covenant;  but  B  refused  toper- 
form  his  covenant,  and  A  brought  ejectment  against  him.  Held,  that  B,  by  his  covenant, 
had  recognized  A's  title,  and  agreed  to  iioki  under  him  for  a  year,  and  was  therefore  es" 
topped  from  disputing  A's  title.     Tindall  v.  Den.  1  New  Jersey,  651. 

{/')  Where  land  is  sold  under  a  decree  in  Chancery,  the  party  in  possession  stands  in  the 
relation  of  tenajit  to  the  purchaser,  and  is  estopped  to  dispute  his  title.  Siglar  v.  Malone,  3 
Humph.  16. 

(c)  The  attornment  of  a  tenant  to  a  stranger,  though  invalid  against  the  landlord,  ia  still 
binding  upon  himself.    Kenada  v.  Gardner,  3  Barb.  689. 


220 


LEASE. 


[CHAP.  XV. 


such  case,  that  the  false  representations  were  made  under  a  mistake  of 
the  lessor.(l)(a) 

89  c.  So  the  mere  fact,  that  one  had  been  in  possession  as  tenant  of  his 
father-in-law,  is  not  a  bar  to  the  proof  of  a  parol  sale  and  gift  to  him  by 
his  father-in-law,  where  he  ceased  to  pay  rent  for  several  years,  contin- 
ued to  hold  the  land  under  his  contract,  paid  part  of  the  purchase- 
money,  made  valuable  improvements,  and  had  the  property  assessed  in 
his  own  name.(2) 

90.  A,  having  been  tenant  at  will  to  B,  remained  in  possession  fifty- 
seven  years  after  B's  death.  Held,  the  jury  might  presume  that  the 
land  had  been  restored  to  B's  heirs,  and  an  actual  ouster  of  them,  and 
that  A  had  acquired  a  perfect  title. 

91.  So,  in  ejectment  by  the  heirs  or  devisees  of  a  lessor  against  the 
lessee,  the  latter  may  show  in  defence,  that  the  lessor  had  only  a  life 
estate.  Thus,  a  lessee  covenants  to  pay  rent,  and  to  give  up  the 
land  to  the  lessor,  his  heirs  and  assigns.  A  devisee  of  the  lessor  brings 
ejectment  against  an  assignee  of  the  lessee,  after  the  expiration  of  the 
term.  The  lessee  is  not  estopped  to  show  that  the  lessor  was  but  a 
tenant  for  ]ife.(3) 

92.  The  tenant  in  a  real  action  conve^-ed  the  land  to  A;  in  1813,  A 
devised  it  to  the  demandant.  In  1816,  A  reconveyed  to  the  tenant, 
by  an  indenture  for  one  year,  "  all  the  land,  &c.,  which  A  held  from 
the  tenant  by  deed  dated  March  20,  1813,  now  improved  by"  the  ten- 
ant. The  term  having  expired,  held,  the  tenant  was  not  estopped  to 
claim  under  the  deed  of  1816.  Also,  that  if  he  were,  the  demandant, 
claiming  under  A,  would  be  estopped  by  the  deed  of  1816  to  say  that 
A  in  1822  held  under  the  deed  of  1813,  and  "  estoppel  against  estoppel 
sets  the  matter  at  large."(4) 

93.  A  hires  land  of  B,  and  pays  him  rent.  Afterwards,  B  having 
agreed  with  C  to  give  him  a  loag  lease  of  the  latid,  A  pays  rent  to  C. 
In  an  action  by  C  against  A  for  another  quarter's  rent,  held,  A  was  not 
estopped  from  showing  that  the  above-named  agreement  has  been  re- 
scinded, and  that  he  had  paid  this  rent  to  B.(5) 

94.  A  surrender  of  the  estate  by  a  lessee  to  his  lessor  will  not  au- 
thorize him  to  deny  the  title  of  the  latter,  unless  it  be  made  fairlj^,  and  so 
as  to  give  time  to  the  lessor  to  take  possession.  Thus,  if  immediately 
after  such  surrender  the  tenant  takes  a  lease  from  an  adverse  claimant, 
this  proceeding  will  avail  him  nothing.(6) 

95.  An  infant  will  not  be  estopped  to  deny  the  title  of  his  landlord,  • 
though  he  has  admitted  that  he  held  under  him,  and  given  a  note  for 
the  rent. 

96.  A  lessee  is  not  estopped  to  aver  a  mode  of  payment  of  rent,  vary- 
ing from  the  literal  import  of  the  lease,  and  provided  for  by  an  inde- 


(1)  Wood  V.  Chambers,  3  Pick.  150. 

(2)  Aurand  v.  Wilt,  9  Barr,  5-i. 

(3)  Camp  V.  Camp,  5  Conn.  291 ;  Heck- 
hart  V.  McKee.  5  Watts,  385  :  Doe  v.  Seatoii, 
2  Crompt.  M.  &  R.  728;  Tilghman  v.  Little, 
13   lUin.    239.      See  Heath  v.  Williams,  25 


Maine,   209 ;  King  v.  Murray,    6  Ired.   62  ; 
Byrne  v.  Beeson,  1   Doug.  179. 

(4)  Carpenter  v.  Thompson,  3  N.  H.   204. 
See  Warren  v  Leland,  2  Barb.  613. 

(5)  Brook  V.  Brings,  2  Bingh.  N.  C.  572, 

(6)  Boyer  v.  Smith,  3  Watts,  449. 


(a)  More  especiallj  if  the  tenant  did  not  first  enter  under  him. 
3  N.  H.  204. 


Carpenter  v.  Thompson, 


CHAP.  XV.] 


LEASE. 


221 


pendent  pardl  agreement.  Thus,  in  an  action  by  an  assignee  of  the 
reversion,  though  the  rent  is  by  the  lease  to  be  paid  quarterly,  the  les- 
see may  plead,  that  before  the  time  when  the  lease  was  made  be  loaned 
money  to  the  lessor,  the  interest  of  wiiieh,  it  was  agreed,  should  go  to 
pay  the  rent.(l)(a) 

\)7.  In  an  aetion  for  rent,  by  an  assignee  of  the  reversion  against  an 
assignee  of  the  lease,  it  appeared  that  upon  the  exeeution  of  the  lease 
the  lessee  gave  several  promissory  notes,  not  proved  to  be  negotiable, 
equal  in  amount  to  the  rent  reserved,  payable  respectively  as  the  rents 
woukl  fall  due,  and  stated  in  the  deed  of  assignment  of  the  reversion, 
to  be  given  as  collateral  security.  The  notes  were  transferred  with  the 
reversion  to  the  plaintiff.  Held,  it  was  a  question  for  the  jury,  whether 
the  notes  were  intended  by  the  parties  to  be  in  payment  of  the  rent.(2) 

98.  A  contract,  by  which  a  tenant  is  induced  to  desert  his  landlord, 
is  corrupt  and  void;  and  the  person  to  whom  he  has  attorned  cannot 
maintain  an  action  upon' it.  And,  if  an  adverse  claimant  tampers  with 
a  tenant,  and  gets  possession  either  by  his  consent  or  a  collusive  recov- 
ery, he  is  estopped  to  deny  the  landlord's  title.  So  a  tenant  is  estopped, 
though  he  has  surrendered  to  a  stranger.(3) 

99.  The  purchaser  of  a  term  is  bound  to  surrender  it  to  the  lessor, 
not  to  the  original  lessee.(4)(^) 

100.  The  ])rinciple  of  estoppel  may  be  applied  to  tlic  lessor  as  well  as 
the  lessee.  Thus,  if  the  lessor  at  the  time  of  leasing  has  no  vested  in- 
terest in  the  land,  but  subsequently  acquires  sucli  an  interest,  it  passes 
to  the  lessee  or  his  assignee  from  the  latter  period,  by  estoppel ;  or 
rather,  that  which  was  before  an  estoppel  is  turned  into  a  lease  in  in- 
terest. This  rule  applies  where  the  lessor,  at  the  time  of  leasing,  has 
a  future  and  contingent  interest:  as,  for  instance,  where  he  is  an  heir 
apparent,  or  claims  under  a  contingent  remainder  or  executory  devise; 
but  not  where  an}^  actual  interest,  however  small,  passes  by  the  lease. 
Thus,  if  A,  tenant  for  the  life  of  B,  lease  to  C  for  years,  and  then  pur- 


(1)  Farley  v.  Thompson,  15  Mass.  18  ; 
McCoon  V.  Smith,  3  Hill,  147  ;  Robins  v. 
Kitciien,  8  Walts,  390. 

(2)  Howland  v.  Coffin,  9  Pick.  52. 

(3;  Morgan  v  Ballard,  1  Mar.  558;  Stewart 
V.  Koderick,  4=  Watts  &  S.  183.     See  Gushing 


V.  Adams,  18  Pick.  110;  N.  Y.  Code,  1851, 
33-4;  Cravenorv.  Bowser,  4Barr,  259;  Dela. 
Rev.  Sts.  421. 

(4)  Bruce  v.  Halbert,  3  Mon.  65;  Byruo  v. 
Beeson,  1  Doug.  179. 


(a)  But  parol  evidence  is  inadmissible  that  the  rent  was  not  to  commence  till  a  later 
day  than  that  mentioned  in  the  lease.     Ilenson  v.  Coope,  3  Scott,  N.  R.  48. 

So  pjirol  evidence  is  inadmissible  that  the  Liiid  was  part  of  a  larger  lot,  taken  from  the 
plaiuiiff's  by  one  A,  and  by  agreement  between  them  subdivided,  and  deeds  of  the  seve- 
ral portions  made  to  persons  designated  by  A,  including  the  defendant;  and  witii  the 
understanding  that  A  should  pay  the  whole  rent.     Buck  v.  Fisiier,  4  Whar.  516. 

{b)  In  regard  to  the  estoppel  of  a  tenant,  the  old  law  seems  to  have  made  a  distinction  be- 
tween leases  by  indenture,  and  those  by  deed-poll.  Littleton  says  (sec.  58)  the  le.ssee  may 
plead  that  the  lessor  had  nothing  in  the  tenements  at  the  time  of  the  lease,  "except  the  lease 
be  made  by  deed  indented ;"  and  Lord  Coke  (47  b.)  tiiat  by  a  deed-poll  the  lessee  is  not 
estopped,  and  may  even  plead  non  dimisit,  and  give  the  want  of  title  in  evidence.  See 
Nagleev.  In<:ersoll,  7  Barr,  183.  But  the  distinction  seems  to  be  now  entirely  exploded. 
The  principle  of  tlie  modern  doctrine  is,  that  the  lessee  is  estopped,  not  so  much  by  an  ex- 
press agreement  on  his  part,  as  by  his  acceptance  of  tiie  lease  and  occupation  of  the  land. 
And  the  case  seems  analogous  to  that  of  rent  reserved  upon  a  feoffinent  by  deed-poll,  wiiich 
is  said  to  be  reserved  by  the  words  of  the  feoffor,  and  not  by  the  grant  of  the  feoffee,  and  binds 
the  latter.     (Co.  Lit.  143  b;  and  see  IngersoU  v.  Sergeant,  1  Wbart.  350-1.) 


222 


LEASE. 


[CHAP.  XV. 


chase  the  reversion  in  fee,  upon  the  death  of  B  he  may  ^ill  avoid  the 
lease.(i) 

101.  Of  the  nature  of  a  lease,  is  a  license  to  occupy,  use  or  take  the 
profits  of  h\nd.  This,  however,  seems  to  pass  no  estate^  but  merely  con- 
fer a  certain  right  ov  privilege.  It  is  a  mere  authorit}'-  to  enter  upon  the 
lands  of  another,  and  do  an  act  or  series  of  acts,  without  having  any 
interest  in  the  land  ;  founded  in  personal  confidence,  not  assignable, 
and  valid,  though  not  in  writing. (2)(a) 

102.  Thus,  an  executory  contract  for  the  purchase  of  land,with  leave 
to  the  purchaser  to  enter  and  possess  until  default  in  the  payment  of 
the  purchase-money,  without  any  fixed  period  or  compensation,  is  a 
license,  and  not  a  lease;  it  is  not  an  easement,  nor  a  permanent  interest 
in  land,  nor  does  the  relation  of  landlord  and  tenant  exist.  The  pur- 
chaser cannot  be  treated  as  a  wrongdoer  until  default,  without  a  de- 
mand of  possession. (8)(6)  So,  where  a  parol  contract,  being  for  the 
sale  of  an  interest  in  land,  is  void  as  a  contract;  it  may  still  operate  as  a 
license^  which  will  excuse  the  entry  of  the  purchaser.  But,  in  an  action 
of  trespass  by  the  vendee,  the  vendor  may  justify  under  a  revocation 
of  the  license  by  such  re-entry,  after  default.  So  a  deed  invalid  as  a 
conveyance,  for  want  of  a  witness,  maj^  be  good  as  a  ]icense.(-i) 

102  a.  The  owner  of  wild  land  agreed  with  another  person  to  go  on 
and  clear  a  part  of  it,  and  to  fence,  and  to  help  the  latter  to  build  a  house, 
reserving  to  the  former  the  use  of  the  timber,  except  what  was  needed 
for  "  house,  rails  and  firewood."  Held,  a  mere  license  to  occupy  the 
land,  giving  no  right  to  dispose  of  any  timber  cut  in  clearing  it.(5)  So, 
in  an  agreement  for  the  sale  of  land,  the  purchaser  agreed  not  to  cut, 
or  sutler  to  be  cut,  any  timber  from  the  land,  without  the  consent  of 
the  vendor  in  writing.  In  trover  by  the  vendor  against  one  claiming 
under  the  purchaser,  to  recover  the  value  of  timber  cut  from  the  pre- 


(1)  Weale  v.  Lower,  PoUexfen,  54  ;  Helps 
'J.  Hereford,  2  Barn.  &  A.  2425  Co.  Lit.  48  a 
u  11;  lb.  45  a,  47  b;  4  Kent,  97;  Blake  v. 
Tucker,  12  Verm.  39;  Hubbard  v.  Norton, 
10  Conn.  422  ;  Logan  v.  Aloore,  7  Dana,  76  ; 
Brown  v.  M'Cormick,  G  Watts,  60.  See  Bur- 
chard  V.  Hubbard,  11  Oliio,  316. 


(2)  Mumford  v.  Whitney,  15  Wend.  380; 
Folsom  V.  Moore,  1  Appl.  252. 

(3)  Dolittle  V.  Eddy,  7  Barb.  74. 

(4)  Carrino:ton  v.  Roots,  2  Mees.  &  W.  248; 
Sulhvaiit  V.  Frankhn,  &c.,  3  Ohio,  89:  7  Barb. 
74.  ' 

(5)  Callen  v.   Hilty,   2   Harr.  (Penn.)  286. 


{a)  It  amounts  to  nothing  more  than  an  excuse  for  the  act,  which  would  otherwise  be  a 
trespass.     Cook  u.  Stearns,  11  Mass.  537;   Whitney  v.  Holmes,  15,  152;  Dolittle  v.   Eddy, 

I  Barb  74.  See  Whitmarsh  v.  Walker,  1  Met.  313.  Hence  a  plea  of  license  does  not  bring 
in  question  the  title  to  real  estate.  Wheeler  v.  Romell,  7  N.  H.  515.  A  license  is  sufficient 
to  disprove  aiij^  claim  arising  from  adverse  possession.  Luce  v.  Corley,  24  Wend.  451.  A 
distinctioQ  is  made  in  a  late  English  case,  between  a  license  of  profit^  or  profit  a  prendre, 
and  a  pemonal  license  of  pleasure ;  the  former  of  which  may  be  exercised  by  an  agent. 
In  this  case,  tJiere  was  a  grant  to  heirs  and  assigns.  Wickliam  v.  Hawker,  7  Mees.  &  W.  63. 
A  license  to  search  for  metals,  raise  and  carry  them  away,  and  convert  them  to  the  party's 
own  use,  is  assignable.  Muskelt  v.  Hill,  5  Bing.  N.  694;  7  Scott,  855.  A  parol  license  to 
build  and  maintain  a  bridge  on  another's  land  is  valid.  Ameriscoggin,  &c.  v.  Bragg,  11  N. 
H.  102. 

(6)  On  the  other  hand  it  may  be  proved  by  parol,  that  a  grantor  was  authorized  to  enter 
upon  the  land  and  remove  certain  property;  this  being  a  mere  license.     Parsons  «.  Camp, 

II  Conn.  25. 

A  parol  license,  to  enter  on  land  and  lay  down  aqueduct  logs,  for  the  purpose  of  convey- 
ing water  from  a  spring  to  adjoining  laud,  wilii  liberty  to  enter  Irom  time  to  time  to  examine 
and  repair  the  same,  is  not  a  sale  of  land,  or  an  interest  in  land,  within  the  statute,  Samp- 
son V.  Burnside,  13  N.  U.  264. 


CHAP.  XV.]  LEASE.  223 

miscs  ;  held, 'the  defendant  could  not  give  evidence  of  a  parol   license 
from  the  pluinliiV  to  the  j)urcha.scr  to  cut  the  tinibcr.(l) 

103.  A  parol  license  irom  A  to  B,  to  take  trees  from  A's  land  so 
long  as  B  pleases,  expires  upon  A's  death.(2)  But  where  the  defend- 
ant gave  a  written  license  to  two  persons  to  take  logs  from  tli,e  land  of 
the  j)lainlifl",  and  one  of  the  two  died,  but  the  other,  under  his  license, 
and  without  any  intimation  by  tiie  defendant  of  a  purpose  to  revoke 
the  license,  sul)sequentl3^  took  the  logs ;  held,  the  licen.se  was  not  re- 
voked by  the  death  of  one  of  the  parties,  but  the  defendant  was  liable 
in  trespass.(3) 

104.  A  general  parol  license,  to  cut  and  carry  away  wood  growing 
upon  land,  if  available  at  all,  must  be  acted  on  within  a  reasonable 
time;  and  applies  only  to  the  wood,  as  it  is  substantial!}'  at  the  lime  of 
giving  the  license.  And  what  is  a  reasonable  time,  the  facts  being 
agreed,  is  a  question  for  the  court.  Such  license  docs  not  couiinue  fif- 
teen years,  not  being  acted  upon. (4) 

104a.  Devise  to  A's  children  "of  a  plantation,  to  come  into  their 
possession,  or  into  the  hands  of  the  executors  for  their  benefit,  at  the 
testator's  death,  providing  that  A  have  the  privilege  of  living  on  the 
place  with  his  children  during  his  life."  Held,  A  did  not  take  an  es- 
tate for  life,  but  his  title  was  under 'a  license,  and  of  A's  children  only 
those  took  who  were  in  esse  at  the  testator's  death. (5) 

104  h.  An  unsealed  lease  provided  as  follows  :  "all  the  hedges,  trees, 
thorn-bushes,  fences,  with  lop  and  top,  are  reserved  to  the  landlord." 
The  landlord  having  entered  the  close,  and  drawn  the  trees,  when  cut 
down,  over  it,  the  tenant  brings  an  action  against  him.  Held,  the 
above  agreement  might  be  shown  under  a  plea  of  leave  and  license.(6) 

105.  By  an  indenture  between  the  town  of  B  and  a  mill-dam  corpo- 
ration, tlie  latter  granted  to  the  former  a  certaiiv  proportion  of  a  tract  of 
land  covered  with  water,  "  excepting  the  mill  creek,  and  such  other 
canals  as  may  be  agreed  to  be  kept  open  fur  the  passage  of  boats." 
By  a  subsequent  indenture  between  the  same  }>arties,  it  was  agreed  that 
the  town  might  put  a  covering  over  part  of  the  creek  or  canal,  "  pro- 
vided only,  that  no  interruption  or  impediment  shall  be  made  or  per- 
mitted below  said  covering,  to  boats  on  passing  through  or  mto  said 
canal."  Held,  these  provisions  did  not  constitute  a  license  to  the  abut- 
tors  to  navigate  the  creek. 

106.  The  creek  being  kept  open  for  boats,  held,  altliough  there  was 
an  implied  public  license  to  navigate  it,  this  was  not  such  a  perpetual 
licens.;  as  could  be  pleaded  as  a  grant,  or  a  dedication  to  the  public ; 
and  that  no  individual  could  acquire  a  prescriptive  right,  by  the  use  of 
it  while  thus  open.(7) 

107.  If  a  transaction  between  two  parties  amounts  to  the  grant  of  a 
permanent  privilege  in  the  land,  it  will  constitute  a  lease,  not  a  license, 
though  the  words  might  seem  to  import  the  latter.(a) 

(1)  Piorrepont  v.  Bernard,  5  Barb.  3G-4.  i      (5)  Calhoun  u.  Jester,  1  Jones,  474. 

(2)  Putney  v.  Day,  6  N.  H.  430.  (G)  Hewitt  v.  Isham,  7  Eng.  L.  &  Equ.  595. 

(3)  Chandler  v.  Spear,  22  Verm.  388.  (7)  Baker  v.  Boston,  12  Pick.  184. 

(4)  Gilmore  v.  Wilbur,  12  Pick.  120.  j 


(a)  That  either  construction  may  sometimes  be  given,  see  Year- Book,  5  Hen.  7,  pi.  1; 
Hall  V.  Seabright,  1  Mod.  16.     See,  also,  Williams  v.  Morris,  8  Mees.  &  W.  488. 


224 


LEASE. 


[CHAP.  XY. 


IDS.  A,  ill  coiis'ulcration  of  £5,  grants  to  B  tlie  ])rivilcge  of  flowing 
certain  land  ior  twelve  years  without  restiietion,  and  for  eighty  years 
in  the  winter  during  one-half  of  the  year.  This  is  a  lease.(l)  But  the 
grant  of  a  mere  license  to  flow  passes  no  property.  It  does  not  create 
an  easement,  which  can  arise  only  by  deed  or  prescription.  It  is  a 
mere  rem}' tier  of  damages.(2) 

108  (^  Where  A,  under  a  license  from  B,  the  owner  of  land  through 
which  a.  watercourse  flowed,  erected  a  mill  therecjii,  and  ever  afterwards 
held  and  occupied  such  mill  as  if  it  were  his  own;  but  it  did  not 
appear  that  there  was  any  consitleration  for  the  license,  or  that  it  was 
to  continue  for  any  definite  period,  or  that  there  was  any  agreement 
as  to  the  nature  of  the  occupation,  or  an}'  mutual  stipulations;  in  au  ac- 
tion brought  by  A  against  C,  the  owner  of  a  mill  below,  for  setting 
the  water  back  upon  A's  mill,  by  means  of  a  dam  erected  by  C,  it  was 
held  that  such  license  did  not  amount  to  a  lease  from  B  to  A.  nor 
create  any  privity  of  contract  or  estate  between  therji.(3) 

lOi).  It  is  said  that  licenses  which,  in  their  nature,  amount  to  the 
granting  of  an  estate,  for  however  short  a  time,  are  not  good  without 
deed,  and  are  considered  as  leases,  and  must  always  be  pleaded  as 
such.(a)  Thus,  a  license  from  the  owner  of  land  to  make  a  dam,»bank, 
or  canal  on  his  land,  to  raise  water  for  working  a  mill,  merely  saves 
the  other  party  from  being  a  tresi)asser,  in  iloiiig  the  particular  act ; 
but  does  not  authorize  him  to  enter  u])on  the  land  afterwards  for  the 
purpose  of  making  repairs.(4) 

105)  a.  Where  the  proprietor  of  a  wharf  in  a  harbor  w^as  authorized 
by  statute  to  extend  it  into  the  channel  to  the  line  of  the  harbor ;  and, 
before  any  extension  thereof,  in  pursuance  of  such  act,  the  legislature 
incorporated  a  railroad  company,  with  authorit)'  to  locate  and  con- 
struct a  railroad  across  and  over  the  flats  between  such  wharf  and  the 
line  of  the  harbcn- ;  held,  the  act  operated  as  a  grant,  and  was  not  a 
mere  license,  revocable  at  the  pleasure  of  the  legislature,  and  revoked 
by  the  act  incorporating  the  railroad  company .(;")) 

100  b.  The  declaration  stated,  that  the  plaintilf  had  been  tenant  to 
one  A,  and  during  his  tenancy  had  put  up  certain  fixtures;  that, 
during  the  tenancy,  A  granted  to  the  plaintiff  leave  and  license  to 
kee|>  the  lixtures  on  the  jiremises  after  the  expiration  of  the  tenancy, 
in  Older  that  he  might  sell  them  to  the  incoming  tenant,  and  to  enter 
and  ri'cover  them,  it  such  tenant  would  not  purchase  them  ;  that  the 
defendant  subsequently  became  tenant;  that  he  would  neither  [>ur- 
chase  the  fixtures,  nor  allow  the  plaintiff  to  enter  and  remove  them. 
The  defendant  traversed  that  A  granted  such  license  to  the  plaintiff. 
At  the  trial,  the  ]ilaintiff  gave  in  evidence  the  following  letter  written 
to  him  by  A's  attorney  :  "  Mr,  A  has  no  objection  to  your  leaving 
the  iixtui'cs  o\\    tho  promises  and  making  the  best  terms  with  the  iu- 


(1)  Siuilh  »'.  Simons,  1  Root,  318. 

(2)  Cliiiliin  v  M'KtMizio,  6  8lri)bli.3C.    See 
Wooiiwaiii  V.  Sfi'ly,  11  Ulin.  157. 

(;ti   liraiicli  t'.  Doano,  17  Coim.  402. 

(4)  Cook  V.  Sieanis,  1 1  Mass.  537  ;  Whit- 


ney V.   Holmes,   16,   152.      See  Jamison  v 
MVreily,  5  Watts  &  S.  129. 

(5)  FiU'hburg,  Ac.  v.  Boston.  &c,  3  Cush. 
58. 


(a)  111  trespass  quare  chiusuin  /regit,  a  license  cannot  l>o  Riven  in  evidence  under  the  gon- 
orul  issue.     Italiould  bo  specially  pleaded.     Craba  v.  Fctick,  7  J31ackf.  373. 


CHAP.  XV.]  LEASE.  22'; 

coming  tenant,"  Held,  that  this  document,  if  it  gave  a  license  at  all, 
gave  one  coupled  with  an  interest  in  land  ;  and,  therefore,  not  being 
under  seal,  it  could  not  be  enforced  against  the  incoming  tenant.(i) 

110.  An  executory  is  to  be  distinguished  from  an  executed  license. 
The  former,  where  the  authorized  act  has  not  been  done,  is  revocable, 
and  a  mere  transfer  of  the  land,  without  express  noticc,'l7as  been  held 
a  revocation  ;(f/)  but  the  latter,  where  the  act  has  been  done,  is  irrevo- 
cable, so  far  as  to  exempt  the  party  from  any  liability  to  the  owner  of 
the  land.(2)(6) 

110  a.  S  gave  to  J  an  oral  license  to  erect  and  continue  a  mill-dam 
on  S's  land,  and  to  dig  a  ditch,  through  said  land,  to  convey  water  to 
a  mill  that  J  was  about  to  build  on  his  own  land,  J  ei-ected  the  dam 
and  dug  the  ditch,  and  afterwards  erected  the  mill,  and  continued 
them  during  the  life  of  S.  After  S  had  granted  the  license,  he  con- 
veyed his  land  to  M,  without  any  reservation,  J  continued  the  dam 
and  ditch,  after  the  decease  of  S,  for  the  purpose  of  working  the 
mill,  and  M  requested  him  to  remove  the  dam  and  fill  up  the  ditch, 
and,  upon  J's  refusal  so  to  do,  M  attempted  to  remove  the  dam,  and 
tore  down  a  part  of  it,  and  J  forcibly  interposed,  prevented  M  from 
proceeding  further,  and  repaired  the  injury  so  done  to  the  dam  by  }»[. 
M  thereupon  filed  a  bill  in  equity,  praying  that  J  might  be  enjoined 
and  prohibited  from  any  longer  continuing  the  dam,  which  was  alleged 
to  be  a  nuisance,  and  that  the  same  might  be  ordered  to  be  abated. 
On  an  issue  framed  and  submitted  to  a  jury,  they  found  that  the  dam 
was  a  nuisance.  Held,  that  M  was  entitled  to  a  decree  for  an  abate- 
ment of  the  nuisance,  and  for  a  perpetual  injunction  against  J,  to  pre- 
vent its  renewal.  Held,  also,  that  J  was  not  responsible  for  any  acts 
done   in   pursuance  of  the   license  before  it  was  countermanded,  and 

(1)  Riifley  u.  Henderson,  8  Eng.  Law  and  I  Wallis  v.  Harrison,  4  Mees.  <fc  \\'.  538: 
Eq.  30.5.  j  Woodward  v.  Seel^-,  11  Illin.  157  ;  Sampson 

(2)  Clieever  v.    Pearson,    16    Pick.  273  ;  \v.  Barnside,  13  N.  II.  264. 

{a\  So,  a  license  is  to  be  diatinguislied  from  mere  acts  of  assent  or  acquiescence,  which 
constitute  evidence  of  one.  Tiius,  tlie  defendant  erected  a  dam,  tiie  plaintiff  was  present 
during  such  erection,  made  no  objection,  said  lie  thought  it  would  benefit  his  mill,  and  that 
he  was  satisfied  with  defendant's  mode  of  using  the  water.  Held,  no  license,  but  only  evi- 
dence of  one  for  tiie  jury.  Johnson  v.  Lewis,  13  Conn.  303.  Kven  an  executory  license 
cannot  in  all  cases  be  revoked.  Tims,  where  A  purchased  goods  sold  upon  the  land  of  B, 
and  a  condition  of  sale,  to  which  B  was  party,  was,  that  the  purchaser  might  enter  to  take 
them :  but  B  locked  iiis  gates  and  forbade  an  entry ;  held,  A  was  not  liable  for  breaking  the 
gates.'    Wood  v.  Manley,  11  Ad.  &  Ell.  34. 

If  one  enter  upon  the  land  of  another  by  virtue  of  a  pnrol  license,  given  for  a  considera- 
tion, and  erect  fixtures,  such  license  becomes  irrevocable,  and  trespass  will  lie  against  the 
owner  of  tiie  land  fur  destroying  thera.     Wilson  v.  Cliallant,  15  Ohio,  248. 

Such  license,  executed,  gives  the  right  of  possession  to  control,  repair  and  protect  the 
fixtures.     lb 

What  is  the  nature  and  extent  of  the  estate  or  interest  in  him  who  erects  the  fixtures. 
Qucere.     lb. 

(6)  Upon  this  ground,  where  a  license  is  pleaded  to  erect  and  maintmru,  evidence  of  a 
licence  to  erect  only,  does  not  sustain  such  plea.     Alexander  v.  Bonuin,  G  Scott,  611. 

Where  a  landlord  had  distrained  for  rent,  and,  in  consideration  of  his  giving  up  the  dis- 
tress, tiie  tenant  agreed  to  surrender  the  premises  in  a  week,  and  accordingly  removed  his 
furniture,  and  after  a  week  the  lessor  entered;  held,  he  was  not  liable  to  an  action  of  tres- 
pass, the  facts  showing  a  license  from  the  plaintiO"  which,  it  seems,  was  not  revocable.  At 
any  rate,  a  revocation  must  be  distinctly  replied.     Feltham  v.  Cartwrigiit,  7  Scott,  695. 

A  license  to  build  and  maintain  a  bridge  over  another's  land  is  not  revocable,  it  seems; 
certainly  not,  without  compensation.     11  N.  H.  102. 

Vol.  I.  15 


226 


RENT. 


[CHAP.  XVL 


therefore  was  not  liable  to  paj  any  expenses  incurred  by  M  in  re- 
moving the  old  dam  ;  but  that  he  was  liable  for  buildiug  a  new  dam 
or  repairing  the  old  one,  after  the  license  was  countermanded,  and  thao 
M  was  entitled  to  have  the  same  abated  at  the  expense  of  J.(l) 

111.  A  and  B  were  joint  tenants;  and,  although  no  partition  had 
been  made  between  them,  it  was  understood  that  A  should  have  the 
east,  and  B  the  west  end  of  the  tract.  B  agreed  that  A  might  build 
a  mill  on  A's  half,  and  cut  as  much  timber  off  the  west  half,  and  over- 
1low  as  much  of  the  laud,  as  was  necessary  for  that  purpose.  After- 
Avards  B  sold  to  C,  who  agreed  with  A  to  abide  by  these  stipulations. 
After  the  dam  was  partly  erected,  and  timber  collected  for  building 
the  mill,  C  sold  to  I),  who  soon  after  notified  A  to  discontinue  the 
work ;  and,  on  his  refusal,  brought  trespass  for  overflowing  the  land. 
Held,  the  action  could  not  be  maintained,  and  that  the  original  parol 
agreement  could  not  be  revoked  after  it  had  been  executed  at  the  de- 
fendant's expense.(2) 

112.  For  any  abuse  of  a  license,  the  party  injured  may  maintain  an 
action.  Thus,  the  plaintiff,  having  a  way  over  the  defendant's  land, 
gave  him  a  license  to  build  an  arch  over  such  way,  but  the  defendant, 
in  so  doing,  unnecessarily  and  unreasonably  obstructed  the  way.  Held, 
the  plaintiff  niight  maintain  an  action  on  the  case  for  this  obstruc- 
tion.(8) 


CHAPTER  XVI. 


RENT. 

1. 

Definition. 

29 

3. 

Must  be  certain. 

41 

4. 

In  what  payable. 

4G 

5. 

Effect  of  a  re.servation  of  part 

of  the 

produce,  and  whether  the  landlord 

52-3. 

lias  a  lien. 

11. 

Kinds  of  rent. 

57 

12. 

Rent-service. 

62. 

13. 

Rent-charge. 

63 

15. 

Rent-seek. 

65 

16. 

Fee-farna  rent. 

68 

17. 

Seizin  of  rent. 

18. 

From  what  it  may  issue. 

69 

23. 

On  what  conveyance  reserved. 

72 

24. 

Several  rents  reserved  by  one  c 

eed. 

86. 

To  whom  reserved. 

When  payable. 

To  wiiom  it  passes  upon  the  lessor's 
death. 

Remedies  for  recovery  of  rent — dis- 
tress. 

Re-entry. 

Debt  and  covenant. 

Assumpsit. 

Election  of  remedies. 

Restoration  of  land  after  forfeiture; 
attachment  for — before  due. 

Suit  in  (Miaticery. 

Ji^states  in  a  rent. 

Not  lost  by  non-user. 

1.  In  the  natural  order  of  topics,  we  now  proceed  to  state  the  rules 
of  law  applicable  to  the  most  important  incident  of  an  Estate  for  Years 
and  a  Lease,  which  were  respectively  treated  of  in  the  two  preceding 
cha[)ters ;  viz..  Rent.  This,  for  the  mo.st  part,  though  not  exclu.-^ively, 
pertains  to  the  two  subjects  above  referred  to,  and  therefore  finds  a 
proper  place  in  immediate  connection  wilh  them. 


(1)  Stevens  v.  Stevens,  11  Met.  251. 

(2)  ShefiSeld  v.  Collier,  3  Kelly,  82. 


(3)  Gushing  v.  Adams,  18  Tick.  110. 


CHAP.  XVr.]  RENT.  227 

2.  Rent  is  a  periodical  return  rnaJo  b}'  any  par  tic  ulv  tenant  of  land, 
either  in  money  or  otherwise,  in  reliibution  lor  the  land. 

3.  A  rent  must  be  certain,  or  capable  of  being  made  so  by  either 
party.(l)(a) 

4.  The  old  doctrine  is,  that  rent  must  issue  out  of  the  thing  granted, 
and  not  bo  a  jmrt  of  the  thing  itself.  Tlius,  it  eanuCrconsist  of  the 
annual  vesture  or  herbage;  for  that  should  be  repugnant  to  the  grant.(2) 
Tt  is  often  reserved,  however,  in  a  certain  portiun  of  the  produce.(6) 
r>ut  it  has  been  held,  tliat  the  whole  property  in  such  produce  remains 
in  the  lessee  till  it  is  divided,  and  the  lessor's  share  delivered  to  him. 
So,  also,  that  a  creditor  of  the  former  may  legally  seize  the  whole.  So, 
also,  tliat  upon  his  death  it  passes  to  his  administrator.(3)(c) 

5.  And  the  same  principle  has  been  adopted  where  the  lease  pro- 
vides that  the  lessor  shall  have  a  claim  upon  the  produce  as  security 
for  the  rent, 

G.  A  lease  provided  that  the  produce,  whether  growing  or  harvest- 
ed, if  deposited  upon  the  land,  should  be  held  for  the  rent,  and  be  at 
the  lessor's  disposal,  who  might  enter  and  take  it  for  rent  in  arrear. 
Before  rent-day,  previous  instalments  having  been  paid,  a  creditor  of 
the  lessee  seized,  by  legal  process,  a  quantity  of  corn  raised  upon  the 
land.  Ileld,  no  property  had  vested  in  the  lessor,  as  against  ci'editors, 
either  by  way  of  sale,  mortgage  or  pledge,  for  want  of  delivery,  and 
continued  possession ;  and  the  agreement,  giving  the  lessee  an  absolute 
title  until   the  lessor  should   take  possession,  was  fraudulent  against 


creditors.(4) 

(1)  3  Cruise,  186  ;  Co.  Lit.  142  a. 

(2)  \h. 

(3)  Stewart  v.  Doughty,  9  John.  113; 
Doikliam  v.  Parl^er,  9  Greenl.  137.  See 
cii.  15,  s.  24;  also,  Rineliart  v.  01  wine, 
5  Walta  &  S.  157;    Morgan  v.   Moody,   6 


333  ;  Doaver  v.  Rice.  4  Dev.  k,  B.  431 ;  U.  S. 
V.  Gratiot,  14  Pet.  52G;  Turner  v.  Baciielder, 
5  Sliepl.  257  ;  Wliilcoiiib  v.  Tower,  12  Met. 
487;  Thompson  v.  Spinl<s,  12  Ala.  155.  . 
(4)  Buttertield  v.  Baker,  5  Pick.  522. 


(a)  The  maxim  applies  in  this,  as  in  other  cases,  "id  cerium  est,  quod  cerium  reddipotesty 
Smith  V.  Fyler,  2  Hill,  648. 

A  demise  at  will,  in  consideration  of  services  rendered  annually  to  a  religious  society,  "as 
foresinper  and  orLTiiiist,"  is  not  within  the  Pennsylvania  act  oC  1772,  for  uncertainty  in  tlio 
rent      llohly  v.  German,  Ac,  2  Barr,  203.     See  Glasu'ow  v.  Rid<<eley,  11  Mis.  34. 

{h)  Ciiiiiicellor  Kent  considers  tliis  the  most  judicious  mode  of  reservation  in  long  lease.", 
on  account  of  the  lluctuating  value  of  money.  lie  mentions  the  case  of  the  N.  Y.  Univer- 
sity, wiioao  annual  income  is  limiteil  by  law  to  40,000  burshek  of  wheat.  3  Kent,  369.  See 
Van  Rensselaer  v.  Jewett,  5  Denio,  135;  v.  Gnllup,  lb.  454;  Tayl.  L.  &  T.  7. 

Where  the  rent  reserved  is  one-half  of  the  crop,  this  entitles  the  landlord  to  one-lialf  the 
straw.     Rank  v.  Rank,  5  Barr,  211. 

Where  tlio  rent  of  land  leased  for  the  cultivation  of  sugar  is  payable  in  a  portion  of  the 
crop,  it  will  be  prcsun)ed,  in  the  absence  of  any  o.xpress  stipulation,  that  the  sugar  is  to  bo 
delivered  in  the  u.sual  manner,  tliat  is,  in  hogsheads  or  barrels,  and  the  lessee  cannot  cl.<ini 
anv  allowance  for  the  cost  of  the  ho^'sheads  or  barrels.  Wilcoxea  v.  Bowles,  1  L:i.  Ana 
R.'230. 

(r)  The  owner  of  land  rented  it  to  raise  a  crop  of  corn.  Before  the  crop  was  gathered, 
the  owner  sold  it,  and  the  purdiaser  turned  a  number  of  hogs  into  tlie  field.  Held,  this 
was  a  trespass  to  llio  lessee.     Hodgers  v.  Lntlirop,  1  Smith,  347. 

If  .\  nvike  a  parol  agreement  with  B  to  clear  and  sow  the  land  of  B  for  the  crop,  and  be- 
fore harvest  B  convey  the  land  to  C,  with  notice  of  suoli  contract,  C  will  bo  bound  by  it. 
Dewey  v.  Bellow.s.  8  N.  II.  278. 

Kent  may  be  reserved  in  labor,  as  well  as  produce.  And,  if  a  tenant  agrees  to  pay  in 
this  way  by  ilio  month,  when  he  ceases  to  labor,  iiis  title  comes  to  an  end,  witiiout  notice 
to  quit.     M'Gee  v.  Gibson,  1  B.  Mon.  105. 

"Where  a  tenant  agreed  to  cultivate  and  bag  the  hop  crop  in  payment  of  the  rout;  held, 
Buch  crop  belonged  to  the  landlord,     KeUey  v.  Weston,  2  Appl.  232, 


228  RENT.  [CHAP.  XVI. 

7.  So,  where  a  rent,  is  reserved  in  nioney,  but  the  lessor  reserves  a 
right  to  take  a  portion  of  the  produce  at  a  certain  valuation,  in  lieu  of 
money,  he  acquires  no  property  until  he  has  elected  and  actually  ta- 
ken the  produce;  and,  upon  the  lessee's  death,  the  right  of  election 
ceases,  and  the  whole  existing  produce  vests  in  the  administrator,  leav- 
ing the  lessor,  in  case  of  insolvency,  only  the  rights  of  a  general  credi- 
tor. So,  where  a  lease  provided  that,  in  case  of  non-payment  of  rent, 
the  lessor  should  have  all  the  crops,  to  dispose  of  as  he  pleased  ;  held, 
until  delivery  of  the  crops,  or  possession  taken,  in  payment  of  the  rent, 
they  remaint'^d  the  property  of  the  lessee,  liable  to  be  sold  by  him  or  at- 
tached by  his  creditors.(l) 

8.  The  contract  between  the  parties  may  be  of  such  a  nature  as  to 
make  them  joint  oioners  of  the  crop  or  produce.(a) 

9.  A  rented  a  farm  from  B  upon  the  following  terms  :  A  was  to 
give  B  one-half  of  every  thing  that  was  made,  to  carry  all  the  crops  to 
market,  and  pay  B  one-half  of  the  proceeds.  A  made  a  crop  of  tobac- 
co, and  assigned  in  writing  all  his  interest  therein  to  C,  who  was  to 
have  the  crop  prepared  for  market,  and  sold,  and  to  pay  over  to  B  one- 
half  of  the  net  proceeds.  The  tobacco  was  left  in  the  possession  of  B's 
agent,  and  A  retained  possession  of  no  part  thereof,  after  his  agree- 
ment with  C.  Hf  Id,  the  contract  between  A  and  B  created  the  relation 
of  landlord  and  tenant,  and  vested  in  each  a  joint  interest  in  the  crop; 
that  the  sale  to  C,  if  effectual,  could  only  constitute  him  a  tenant 
in  common  with  A  ;  and  that  B  could  not,  therefore,  maintain  replevin 
against  A.(2) 

10.  The  defendant  entered  into  a  contract  with  A,  in  writing,  not 
under  seal,  "  to  1  t"  to  A  a  certain  farm,  to  commence  on  the  Jst  of 
April,  and  continue  from  year  to  year  for  five  years,  or  so  long  as  the 
parties  should  agree  and  be  satisfied,  reserving  to  either  party  the  right 
to  terminate  the  contract  by  giving  one  month's  notice  in  writing,  the 
produce  of  the  farm  "tobeequally  divided  by  weight  or  measure."  ileld, 
although  this  gave  to  A  an  interest  in  the  land,  and  a  right  to  occupy  it 
while  he  continued  in  the  performance  of  the  contract ;  yet,  it  did  not 
constitute  a  lease,  but  A  was  a  quasi  tenant  at  will  while  the  contract 
continued,  and  the  defendant  and  A  were  tenants  in  common  of  the 
growing  crops,  and  of  the  produce  of  the  farm  before  severance.(3) 

10  a.  Contrary  to  the  doctrine  above  stated,  (sees.  4,  5,)  it  has  been 
held  in  Vermont,  that  where  stock  and  farming  utensils  worth  $1,000, 
were  leased  with  the  laud,  with  a  ])rovision  that  they  should  remain  the 
property  of  the  lessor,  and  be  security  for  the  rent  and  covenants,  as 
also  other  articles  of  the  same  kind  and  vajue,  which  might  be  substi- 
tuted for,  or  added  to  them;  held,  a  valid  contract,  and  that  the  lessor 
had  a  good  title  to  the  property  leased,  and  all  purchased  with  its  avails, 
or  those  of  the  products  of  the  farm,  to  the  amount  of  $1,000.(4) 

10  b.  Held,  also,  that  the  property  thus  on  the  farm,  to  the  amount 


(1)  Wait,  &c.,  7  Pick.  100;  Munsell  v.  Ca- 
rew,  2  Cusli.  50. 

(2)  Ferrallv.  Kent,  4  Gill,  209. 


(3)  Aiken  v.  Smith,  21  Verm.  172. 
(i)  Paris  V.  Vail,  18  Verm.  277. 


(a)  A  landlord,  entitled  to  one-half  of  the  crops,  when  divided,  cannot  maintain  trespass 
against  the  tenant  fur  taking  the  hay  which  tiie  landlord  liad  in  his  possession,  but  which 
had  never  been  divided.     Briggs  v.  Thompson,  9  Barr,  338. 


CHAP.  XVI.]  KENT.  229 

of  $1,000  in  the  whole,  could  not  be  attaelic'l  by  the  creditors  of  the 
lessee,  but  that  the  right  of  the  lessor  extended  only  to  that  amount, 
and  could  not  extend,  under  the  terms  o(  the  lease,  to  the  excess  of 
pro])ertv  over  tiiat  value,  nor  to  property  acquired  by  the  lessee  irom 
the  avails  of  his  individual  means.(l) 

10  c.  The  creditors  of  the  lessee,  having  attached  andjiold'the  stock 
and  fanning  utensils  on  the  farm,  a  [)art  ol'  which  consisted  of  proj)erty 
placed  upon  the  farm  by  tlie  lessor  at  the  commencement  ol'  tlie  term, 
and  the  remainder  of  which  was  property  purchased  by  the  lessee,  in 
phice  of  stock,  &c.,  sold  b}'  him,  with  the  consent  of  the  lessor  ;  held, 
in  absence  of  all  proof  of  fraud,  that  the  lessor  was  entitled  to  recover 
against  the  attaching  creditors,  to  the  amount  of  §L,000,  and  interest 
from  the  time  of  the  taking.(2) 

10  d.  So  it  has  been  held  in  the  same  State,  that  a  lease  of  land,  re- 
serving rent,  and  which  provides  that  ail  the  crops  are  to  be  the 
property  of  tlie  lessor  until  the  rent  is  paid,  is  valid,  and  will  entitle  the 
lessor  to  hold  such  crops  against  the  creditors  of  the  lessce.(3) 

10  e.  A  leased  land  to  B  for  two  years,  reserving  rent,  B  executing 
at  the  same  time  a  promissory  note  for  the  first  year's  rent.  The  lease 
provided  that  the  lessor  was  to  have  entire  control  and  ownership 
of  all  the  crops  until  the  rent  of  each  year  was  i)aid.  A  indorsed 
the  note  to  C,  and  delivered  to  him  the  lease  as  security.  Ileld,  C 
would  hold  the  crops  raised  the  first  year,  as  security  against  one  who 
attached  them,  as  the  property  of  B,  and  became  the  purchaser  of  them 
upon  the  execution  sale.(4)(a) 

(1)  Paris  V.  Vail.  10  Verra.  277.  r     (3)  Smitli  v.  Atkins,  18  Venn.  461. 

(2)  lb.  I      (4)  lb. 

(a)  In  connection  with  the  somewhat  contradictory  doctrines  stated  in  the  text,  (sees.  4-10,) 
it  m:iy  bo  mentioned,  tlmt  in  many  of  the  Stales  express  statutory  provisions  have  given 
tlie  landlord  a  clain)  or  title  to  the  produce  of  the  land  which  he  would  not  otherwise  have. 
TUw*,  ill  Missouri,  Tennessee,  Illinois,  Arkansas,  Oliio,  (it  seems,)  Iowa,  Mississippi  and 
Alabama,  the  landlord  i>as  a  lien  upon  tlie  crop  for  rent,  usually  for  a  specific  time  after  it 
falls  due.  In  Virginia,  Kentucky,  Alabama,  .Mississippi,  Delaware,  New  York,  Pennsyl- 
vaiiia,  he  has  the  same  lien  upon  the  tenant's  (jooch  on  the  land.  The  word  properly  is  also 
sometimes  used.  In  Maryland,  ho  has  a  lien  on  tiie  crop  for  rent,  if  pa}-able  in  produce. 
Id  Delaware,  if  tlie  rent  is  p.ayable  in  produce  of  a  certain  kind,  tlie  lessor  has  a  lien  upon 
this  amount  of  the  crop;  and  if  sold  on  execution,  the  purchaser  succeeds  to  the  tenant's 
liability  (or  rent  and  good  husbandry,  and  the  crop  is  still  liable  to  distres.s.  But  see  Bryan 
V.  Buclihulder,  8  Humph.  561.  In  New  York,  the  tenant  may  discharge  the  lien  by  giving  a 
bond  with  surety  for  the  rent.  If  the  landlord  claim  and  receive  mora  rent  than  is  due, 
he  is  liable  to  double  damages.  Tcnn.  Sts.  1825,  ch.  21;  Misso.  Sis.  377;  5  Watts,  134; 
Dela.  Sts.  1820,  360-7  ;  1  N.  J.  L.  187  ;  Aik.  Dig.  357  ;  1  X.  Y.  Rev.  Sts.  746;  6  Yerg. 
2G7;  4  Gritr.  071;  3,  404;  1  Ky.  Rev.  L.  630;  Md.  L.  1831,  ch.  171  ;  Illin.  Sts.  1842,  3, 
142;  Martin.  5  W.  A  S.  220;  Clay,  506:  Hardoman  v.  Shumate,  3  Port.  393;  Bromley  v. 
Hopewell,  2  Ilarr.  400;  Thompson  v.  Spinks,  12  Ala.  155;  Deiiham  v.  Harris,  13.  465; 
Iowa  Code,  ch.  82,  sec.  1290;  Va.  Sis.  1840,  1,  77;  Tifft  v.  Verden,  11  S.  &  M.  153 ; 
Forman  v.  Proctor,  9  H.  Mon.  124. 

The  following  are  some  of  the  leading  miscellaneous  decisions  in  construction  of  these 
statutes:  — 

In  Virginia,  if  an  officer  take  the  goods  of  the  tenant  without  satisfying  the  lessor's  claim, 
the  measure  of  damages  in  a  suit  by  the  latter  is  not  the  value  of  the  goods,  but  the  amount 
of  rent — the  former  exceeding  the  latter.  Crawford  v.  Jarrett,  2  Leigh,  630.  Tlie  land- 
lord's lien,  for  a  year's  rent,  on  the  poods  and  chattels  of  his  tenant,  does  not  protect  them 
from  an  execution,  except  where  they  are  in  or  upon  the  premises.  Geiger  v.  Harman, 
3  Gratt.  130 

In  Tennessee,  an  action  lies  by  the  landlord  against  a  purchaser  of  the  crop,  but  not  till 
he  has  recovered  a  judgment  agaii.sl  the  tenant  for  the  rent.  The  landlord  has  a  lien  even 
against  a  sub-lessee,  who  has  paid  the  original  tenant.  Ballantine  v.  Greer,  G  Yerg.  267 ; 
Rutlege  V.  Walton,  4,  453. 


230  RENT.  [CHAP.  XVI. 

11.  Bj  the  English  law  there  are  three  kinds  of  rent,  viz. :  rent-service^ 
rent-charge^  and  rent-seek.  And  this  division  has  been  recognized  in  New 
York  ;  although  in  that  State  a  statute  has  done  away  with  all  distinc- 
tions as  to  remedies.{l) 

(1)  Cornell  V.  Lamb,  2  Cow.  652  ;  3  Kent,  368-9.  (As  to  the  rent  called  rack-rent,  see 
Simpson  v.  Clay  ton,  6  Scott,  469.) 

Under  the  act  of  1840,  in  North  Carolina,  which  gives  to  a  landlord,  whose  rent  is  to  be 
paid  in  apart  ol  tlie  crop,  a  certain  interest  in  tliecrop:  if  tlie  tenant  retains  possession,  and 
the  whole  crop  is  levied  upon  as  his  property,  the  landlord  may  bring  an  action  on  the  case 
against  the  officer,  but  not  trespass — having  neither  property  nor  possession.  Peebles  v. 
Lassiter,  11  Ired.  73.  An  execution  against  tlie  tenant  gives  a  lien  upon  tlie  crop  from  its 
teste,  paramount  to  any  claim  of  ilie  landlord  under  a  subsequent  transfer  for  the  rent. 
Deaver  v.  Rice,  4  Dev.  &  B    431. 

In  New  York,  where  a  sheriff,  having  in  his  hands  an  execution  against  a  tenant,  pre- 
vious to  a  sale  receives  a  notice  from  the  landlord  that  rent  is  due  to  him,  and  requiring  the 
sheriff" to  levy  the  amount  of  the  rent  and  pay  the  same  to  the  landlord;  the  paj^ment  of 
the  money  collected  by  the  siieriCf  into  court  will  not  be  a  bar  to  a  suit  against  him  by  the 
landlord  for  the  amount  of  such  rent.     Acker  v.  Ledyard,  8  Barb.  514. 

Wliere  an  execution  creditor,  as  well  as  the  tenant,  admits  that  there  is  a  certain  sum  as 
rent  due  the  landlord,  tlie  slierifif  cannot  discharge  himself  from  liability  to  the  landlord,  by 
paying  the  money  into  court,  in  a  suit  in  which  the  landlord  is  not  a  party.     lb. 

Wliere  an  offence  was  committed  against  the  New  York  statute,  proiiibiting  the  removal 
of  goods  from  demised  premises,  to  avoid  the  payment  of  rent,  (2  P>-ev.  Sts  503,  sec.  17,)  so 
that  the  landlord's  riglit  to  sue  for  the  penalty  imposed  was  nerfect,  before  distress  for  rent 
was  abolished  by  the  act  of  1846,  (p.  369  ;)  held,  his  right  of  action  was  not  taken  away 
by  the  latter  statute.     Conley  v.  Palmer.  2  Comst.  182. 

Only  one  penalty  can  be  recovered,  and  all  who  assist  may  be  sued  together.     lb. 

In  Pennsylvania,  a  slieriG"  who  sells  land  on  execution  which  is  subject  to  arrears  of 
ground-rent,  and  distributes  the  fund  to  other  persons,  is  personally  liable  to  the  owner  of 
the  ground-rent.     Mather  v.  MeMichael,  1  Harris,  301. 

So,  tliough  he  stipulates  in  the  conditions  of  sale,  that  unless  the  claim  for  ground-rent 
is  presented  before  he  parts  with  the  purchase-money,  the  arrears  will  be  paid  by  the 
purchaser.     lb. 

The  preference  of  a  landlord  for  one  year's  rent  is  not  confined  to  the  rent  for  the  year 
immediaiely  preceding  the  execution,  although  a  new  year  has  commenced,  for  whicli  the 
rent  accrued  has  been  paid  ;  nor  does  it  make  any  difference  tliat  the  year's  rent  due  ac- 
crued under  a  former  lease,  which  has  expired.  Richie  v.  McCauley,  4  Barr,  471;  Parker's 
Appeal,  5  Barr,  390. 

Wiiere  the  property  of  a  tenant  is  levied  on  upon  the  premises,  the  landlord  is  entitled 
only  to  tlie  rent  due  at  the  time  of  the  levy,  out  of  the  proceeds  of  the  sale.  Nor  can  he 
set  off  the  rent  becoming  due  after  the  levy,  against  the  tenant's  book  account  against  him, 
for  which  credit  is  asked,  as  a  deduction  from  the  rent,  in  a  feigned  issue  between  the 
landlord  and  the  execution  creditors,  to  try  the  amount  of  rent  due.  Case  v.  Davis,  3 
Harris,  80. 

Where  the  tenant  was  to  pay  taxes,  the  landlord  is  not  entitled  to  the  amount  of  taxes 
paid  by  iiim  after  the  levy.     lb. 

In  Maryland,  arrears  of  rent,  of  which  the  sheriff  had  notice  by  a  due  warrant  of  distress, 
before  .sale,  cannot  be  retained  for  the  use  of  the  landlord  by  the  sheriff  out  of  the  proceeds 
of  the  goods  of  a  stranger  levied  upon,  while  on  the  demised  premises,  under  a  writ  of  at- 
tachment, to  compel  an  appearance  at  law  ;  the  same  goods  having  been  duly  condemned, 
and  afterwards  sold  by  fieri  facias,  under  the  judgment  of  condemnation.  Fisher  v.  Jolinson, 
6  Gill,  354. 

In  Kentucky,  under  the  act  of  1843,  a  tenant,  after  entering  upon  the  premises,  cannot 
defeat  his  landlord's  lien  upon  his  property  by  mortgaging  it.  Beckwith  v.  Bent,  10  B.  Mon.  95. 

The  act  of  1843,  in  Missouri,  "concerning  landlords  and  tenants  in  St.  Louis  county," 
gives  no  lien,  unless  the  rent  be  due  and  certain  ;  but  where  a  certain  rent  has  been  re- 
served for  a  house,  and  additional  premises  are  rented  at  an  uncertain  rc;nt,  the  whole  rent 
is  not  thereby  rendered  uncertain      Glasgow  v.  Ridgeley,  11  Mis.  34. 

As  tlie  converse  of  the  landlord's  lien,  referred  to  in  the  te.xt,  in  some  cases  the  tenant 
may  acquire  a  lien  upon  the  land  against  the  landlord.  Thus,  he  shall  have  such  lien  in 
Kentucky,  where  he  has  been  compelled  to  pay  taxes  upon  the  land  beyond  or  against  his 
contract.  In  Maryland,  New  Jersey  and  New  York,  the  tenant  is  allowed  to  deduct  the 
amount  of  such  taxes  from  his  rent.  2  Ky.  Rev.  L.  1364;  3  Md.  L.  121  ;  1  N.  Y.  R.  S. 
419;  4  Griir.  1274.  As  to  special  remedies  in  case  of  landlord  and  tenant,  see  "Ward  v. 
Wandell,  10  Barr,  98  ;  McCaskle  v.  Amarine,  12  Ala.  17. 


CHAR  XYI.]  KENT.  231 

12.  Rent-service^  the  only  one  known  to  the  conunon  law,  and  the 
one  cliitfly  in  use  in  the  United  States,  is  thus  defined  :(1)  "where  a 
tenant  holds  his  lands  by  fealty  or  other  scrviees,  and  a  certain  rent." 
The  name  service  was  applied  to  this  rent,  because  it  w:is  a  substitute 
i'or  the  feuilal  services,  which  in  early  times  the  tenant  paid  to  his 
lord.  To  a  rent-service  the  power  of  dislress  was  in.separiibly  incident. 
{/njni,  s.  51.) 

18.  A  rent-charge  is  a  rent  granted  out  of  lands  by  deed.  Such  rent 
is  not  in  ^'^if^' subject  to  be  enforced  by  distress,  but  is  usually  charged 
expressly  with  this  right,  and  hence  derives  its  name  of  rc7ii-charge. 
It  is  said  that  rent-charges,  though  of  great  antiquity,  were  against  the 
policy  of  the  common  law,  inasmuch  as  they  were  commonly  for  the 
benefit  of  younger  children,  and  rendered  the  grantor  less  competent 
to  perform  his  ieudal  services,  while  they  did  not  sul)ject  the  grantee 
to  such. services.  Hence,  a  rent-charge  is  ogaiust  conunon  right.  But 
where  a  rent-charge  is  granted  for  valuable  consideration, — as  in  case 
of  partition  between  parceners,  or  in  lieu  of  dower  ;  it  is  said  the  owner 
may  diatrain,  of  common  rigid. 

11.  A  section  of  the  statute  of  uses  transfers  to  the  cestui  que  use  of  a 
rent-charge  the  legal  seizin  and  possession  of  such  rent. (2) 

15.  A  rent-seek,  or  barren  rent,  is  one,  for  recovery  of  whicli  by  dis- 
tress, at  common  law,  no  power  is  given  either  by  law  or  by  agreement. 
It  does  not  differ  from  a  rent-charge,  except  in  this  particular.  Being 
connected  with  the  power  of  distress,  a  rent-charge  is  regarded  as  an 
interest  in,  or  specific  portion  of,  the  land — bound  by  a  judgment,  and 
subject  to  execution  ;  while  a  rent-seek  has  none  of  these  properties. 
AVhere  a  lessee  assigns,  reserving  rent  to  himself,  the  excess  over  that 
reserved  to  the  lessor  is  said  to  be  a  rent-seck.{S) 

16.  A  fee-farm  rent  is  a  perpetual  rent  reserved  on  a  conveyance  in  fee- 
simple.  It  is  said  that  in  England,  since  the  statute  oi"  quia  empiores, — 
by  which  tenure  w^as  to  be  ahvays  of  the  chief  lord,  instead  of  the  im- 
mediate donor, — a  fee-farm  rent  is  impracticable,  because  a  grantor  in 
fee  retains  no  reversion,  which  is  essential  lo  a  rent.  It  seems,  however, 
that  such  reservation,  accompanied  by  a  power  of  distress  and  re-entry 
on  non-payment,  might  make  a  good  rent-charge,  and,  in  the  United 
States,  though  unusual,  it  would  undoubtedly  be  legal  and  valid.  In 
Massachusetts,  a  rent  of  this  description  is  sometimes  known  by  the 
name  of  quit-rent{a)  or  rent-charge,  and  in  New  Jersey  and  New  York 
as  a  rent-charge.  In  Pennsylvania  it  is  termed  a  ground-rent,  and  is 
said  to  be  a  very  common  species  of  inheritable  estates.  In  that  State, 
the  statute  quia  emptores  is  not  in  force  ;  and  a  ground-rent  is,  therefore, 
as  at  common  law,  a  rent-service,  and  not  a  rent-charge,  as  in  England 


(1)  Litt.  213. 

(2)  Co.  Lit.  143  b;  3  Cruise.  187;  Lit. 
252;  IiigcraoU  v.  Sergeant,  1  Wliart.  352; 
Cornell  v.  Lamb,  2  Cow.  652. 


(3)  Cornell  v.  Lamb,  2  Cow.  652 ;  People 
V.  Haskins,  7  "Woiul.  4G3  ;  Veclite  v.  Brown- 
ell,  8  Pai^e,  212;  Wollastoii  v.  Hakewill,  3 
Man.  &  G.  297. 


(a)  It  is  said  (Murshall  v.  Conrnd,  5  Call,  364)  that  quit-rents,  in  England,  were  rents 
reserved  to  tlie  kintr  or  a  proprietor  on  an  nhsolute  prant  of  waste  land,  for  which  a  price  in 
gros.s  w:)s  at  first  paid,  and  u  merely  nominal  rent  reserved,  as  a  feudal  acknowled>rmont  of 
tenure ;  and  that,  inasmuch  as  no  rent  of  this  description  can  exist  in  the  United  States, 
where  a  quit-rent  is  spoken  of,  some  different  interest  must  be  intended.  See  Sueed  v. 
Ward,  5  Daiia,  187. 


232 


EENT. 


[CHAP.  XVI. 


since  the  statute.  In  a  late  case  it  is  said  by  the  court,  in  their  very 
learned  and  elaborate  opinion,  that,  before  the  statute  quia  emptores^  a. 
rent-charge  could  exist  only  where  one  man  granted  to  another  and 
his  heirs  a  yearly  sum  charged  on  tlie  land,  with  the  right  of  distress ; 
but  this  statute  made  a  fee-farm  or  ground-rent  a  rent-charge,  by  con- 
struing the  reservation  by  the  grantor  into  a  promise  or  grant  by  the 
grantee.{a)  In  New  York,  this  view  of  the  subject  is  not  adopted;  but 
every  rent  is  a  rent-charge,  where  the  landlord  has  no  reversionary 
interest. (1)(Z>)  In  Ohio,  such  a  thing  is  hardly  known  as  a  rent- 
charge.(2) 

17.  Seizin  of  a  rent  can  be  had  only  by  receipt  of  the  whole  or  a 
part  of  it,  except  in  case  of  a  conveyance  to  uses,  which,  by  the  opera- 
tion of  the  statute  of  uses,  gives  a  seizin  immediately,  without  any 
receipt.(3) 

18.  A  rent  can  issue  onl}^  from  corporeal  hereditaments,  or,  as  Lord 
Coke  says,  an  inheritance  that  is  manurable  or  may  nor  able ;  because 
these  alone  are  subject  to  distress  ;  and  incorporeal  rights,  being  always 
granted  originally  by  the  crown,  are  created  for  particular  purposes, 
foreign  from  the  payment  of  rent,  which  would  therefore  be  contrary 
to  the  intention  of  the  grant.(4) 

19.  A  rent  cannot  be  reserved  from  a  rent.    Thus,  if  one  lease  lands 


(1)  Co.  Lit.  143  b,  n.  5  ;  Adams  v.  Buck- 
lin,  7  Pick.  121;  Farley  v.  Craicr,  6  Halst. 
262;  1  Whart.  360;  Ingersoll  ^.  Sergeant,  1 
Wliart.  337;  Lit  217;  (and  see  Marshall  t;. 
Conrad,  5  Call,  364;  Cornell  v.  Lamb,  2  Cow. 
652  ;  Kenege  v.  Elliot,  9  Watts,  262  ;  Penn. 


St.  1840.  249 ;  Governors,  &c.  v.  Harrild,  2 
Man.  &  Gr.  713,  n;  Mower  v.  Hartopp,  & 
Beav.  476.) 

(2)  Walk.  265. 

(3)  3  Cruise.  188. 

(4)  Co.  Lit.  47  a;   142  a;   Gilb.  20-22. 


(a)  "Where  land,  on  wliicli  a  perpetual  rent  has  been  reserved,  is  conveyed  either  by  in- 
denture or  deed-poll,  to  be  held  "under  and  subject  to  the  payment  of  the  said  rent,  as  the 
same  shall  accrue,  forever,"  the  grantee  is  liable  for  the  rent,  only  so  long  as  the  freehold 
remains  in  him.  and  not  to  indemnify  his  errantor  (or  the  payment  ot  rent  accruing  afier  he 
has  conveyed  the  premises.     Walker  v.  Physick,  5  Barr,  193. 

The  payment,  by  an  assignee  of  land,  of  a  ground-rent  whicli  accrued  while  occupied  by 
him,  does  not  raise  the  presumption  of  payment  of  a  judgment  for  the  ground-rent  against 
his  assignor.     Wills  v.  Gibson,  7  Barr,  154. 

A  purchaser  of  land  sold  on  execution  is  not  liable  for  a  ground-rent  accruing  between 
the  sale  and  the  sheriff's  deed.     Thomas  v.  Connell,  5  Barr,  13. 

A  conveyance  reserving  a  ground-rent  to  the  grantor,  with  a  covenant  to  convey  in  fee 
simple  absolute  on  payment  of  a  certain  sum,  is  an  executed  contract.  Sahl  v.  Wright,  6 
Barr,  433. 

In  an  action  of  covenant  brought  by  tlie  grantee  of  a  ground-rent  against  the  grantor, 
after  the  grantor  has  sold  the  land  out  of  which  it  issues;  it  is  not  necessary  to  notify  the 
vendee  as  terre-tenant;  and  the  sale  of  the  whole  lot  on  execution  on  the  judgment  divests 
the  title  of  sucli  vendee,  as  well  as  of  the  defendant.     Charnley  v.  Hansbury,  1  Harris,  16. 

A  took  a  lot  on  ground  rent,  and  contracted  with  B  to  give  him  a  deed  on  the  perform- 
ance of  certain  conditions;  B  was  put  in  possession,  subject  to  the  ground-rent,  and  ful- 
filled the  conditions  ;  and  A  afterwards  purchased  the  ground-rent.  It  seems,  such  purchase 
did  not  merge  the  ground-rent  in  fee,  nor  enure  to  the  benefit  of  B.     lb. 

Wlicre  ten  ints  in  common,  one  of  whom  held  in  trust,  joined  in  a  conveyance,  reserving^ 
a  ground-rent,  the  trustee  liaving  no  power  to  make  such  conveyance,  the  grantee,  who,  at 
the  time  of  the  conveyance,  knew  of  all  the  facts  relative  to  the  title,  although  mistaking 
the  legal  effect  of  the  deed  creating  the  trust,  cannot,  by  tendering  a  reconveyance,  recover 
back  the  ground-rent  paid  by  him.     Kerr  v.  Kitchen,  7  Barr,  486. 

(6)  A  "sixth  sale,"  or  "quarter  sale,"  reservation,  contained  in  a  lease  in  fee,  is  void  ; 
aliter,  in  a  lease  for  years  or  for  lives.     Overbagh  v.  Patrie,  8  Barb.  28. 

Wiiero  the  payment  of  such  sixth  sale,  or  quarter  sale,  is  made  a  condition  subsequent, 
the  condition  is  void.     lb. 


CHAP.  XVI.] 


RENT. 


233 


for  life,  reserving  rent,  and   then  grant  this  rent,  reserving  rent;  the 
latter  reservation  is  qoid.(l) 

20.  But  rent  may  be  reserved,  upon  a  lease  of  the  vesture  or  herb- 
age of  hmd  ;  because  the  beasts  feeding  there  may  be  distrained.  So, 
upon  a  lease  of  a  remainder  or  reversion  ;  because,  when  become  an 
estate  in  possession,  it  will  be  subject  to  distress,  and  it-is  a  tenemeht.{2) 

21.  Upon  a  lease  to  commence  in  ftituro,  rent  may  be  reserved  im- 
mediately ;  because,  when  the  lessee  takes  possession,  the  lessor  may 
distrain  for  the  arrears.(3) 

22.  The  preceding  remarks,  as  to  the  kinds  of  property  from  which 
a  rent  cannot  legally  be  reserved,  are  to  be  received  with  some  quali- 
fications. As  a  mere  matter  of  conlract,  the  reservation  of  a  return  or 
compensation  for  the  use  of  any  kind  of  real  estate  is  binding,  and  may 
be  enforced  by  action.  But,  unless  the  property  is  of  the  description 
abo\#  pointed  out — first,  there  can  be  no  distress ;  and  second,  by  a. 
grant  of  the  reversion,  the  rent  will  not  pass,  not  being  incident  thereto. 
It  is  said,  however,  that  the  rent  reserved  upon  a  lease  of  tithes  will  pass 
with  the  reversion.  At  common  law,  a  reservation  of  rent,  upon  a  lease 
for  life  of  incorjioreal  property,  is  for  all  purposes  void  ;  no  action  of 
debt  will  lie  for  it.  And  whether  St.  8  Anne,  1-1-,  applies  to  this  kind 
of  property,  seems  doubtful. (4) 

23.  Rent  may  be  reserved  upon  every  conveyance,  wdiich  either 
passes  or  enlarges  an  estate.     It  is  usually  reserved  upon  a  lease.(5) 

24.  Where  several  lands  are  let  by  one  conveyance,  distinct  rents 
reserved,  and  a  right  of  re-entry  upon  the  whole  provided  for  non-pay- 
ment of  the  rent  of  one;  the  reservations  create  several  tenures,  de- 
mises, reversions  and  rents,  and  an  entry  upon  one  parcel  for  non-pay- 
ment of  the  rent  of  another  is  illegal  and  void. (6) 

25.  And  a  third  person  may  purchase  tlie  reversion  of  one  of  the 
parcels,  and  maintain  ejectment  for  non-payment  of  the  rent  of  that 
parcel. (7) 

26.  But,  if  the  rent  be  at  first  reserved  m  g^^oss  or  entire  for  the 
whole  of  the  lands  leased,  and  the  rent  of  each  parcel  afterwards  desig- 
nated separately — as,  for  instance,  for  A,  B  and  C  £15,  viz.  :  £5  for  A, 
£5  for  B,  and  £5  for  C  ;  the  latter  sums  will  be  regarded  as  mere  valua- 
tion.s,  and  for  non-payment  of  one  the  lessor  may  re-enter  upon  the 
whole.(8) 

27.  Upon  the  same  principle,  if  tenants  in  common  join  in  making  a 
lease  upon  condition  ;  as  they  have  several  estates,  the  demise,  the 
condition,  and  the  rent  will  also  be  construed  as  several. (9) 

28.  Where  a  statute  provides  for  re-entry  on  the  land,  and  a  sale  of 
the  lessee's  right  in  such  lease,  upon  non-payment  of  rent ;  the  entry 
must  be  made  upon  the  whole  land,  without  regard  to  any  sub-leases 
ofapart.(10) 

29.  A  rent-service  can  be  reserved  onlv  to  the  owner  of  the  land,  or 


(1)  2  Rolle  Abr.  446. 

(2)  Co.  Lit.  47  a. 

(3)  2  Kolle  Abr.  446. 

(4)  Windsor  v.  Gover,  2  Saun.  302;  Co. 
Lit.  47  R ;  lb.  n.  3  :  44  b,  n.  3  ;  47  a,  n.  4. 

(5)  Co.  Lit.  144  a;   Gilb.  22. 

(6)  Winter's  case,  2  Rolle  Abr.  448  ;  Tan- 
field  V.  Rogers,  Cro.  Eliz.  340  ;  Lee  v.  Arnold, 


4  Leon.  27.  See  Woll^ston  v.  Hakewill,  3 
Man.  &  G.  297  ;  Paterson  v.  Lang,  6  Beav. 
590. 

(7)  Hill's  case,  4  Leon.  187. 

(8)  Kniprht's  case,  5  Rpp.  54. 

(9)  Kiii^'iit's  case,  Moo.  202. 

(10)  Hart  v.  Johnson,  6  Ohio,  88. 


234  RENT.  [CHAP.  XVL 

his  legal  representatives  after  his  death,  or  to  a  party  who  is  privy 
to  the  lease,  as  to  one  of  two  joint-tenants,  who  join  in  leasing  by  in- 
denture; because  it  is  a  recompense  for  the  use  of  the  land,  and  should 
therefore  belong  to  him  from  whom  the  land  passes.  If  the  lease  is  to 
commence  after  the  death  of  the  lessor,  the  rent  may  be  legally  re- 
served to  his  heirs,  who  will  take  it,  not  as  purchasers,  but  by  descent, 
as  incident  to  the  reversion.  And  hence  the  lessor  may  release  the 
rent  during  his  life.(l) 

80.  In  such  case,  the  law  is  strict  in  requiring  the  use  of  the  word 
heirs.  Thus,  where  a  father,  and  his  son  and  heir  apparent,  jcjined  in 
making  a  lease,  to  commence  from  the  father's  death,  and  reserved  the 
rent  to  the  son  :  held,  the  reservation  was  void,  and  the  son  had  no 
right  to  distrain  for  the  rent,  after  the  death  of  the  father.(2)  Upon 
the  same  principle,  at  common  law,  if  a  reversioner  assigned  over  his 

.estate,  the  assignee  could  not  avail  himself  of  any  covenant  or  condi- 
tion in  the  lease.  The  law  upon  this  subject  has  already  been  con- 
sidered, in  treating  of  the  assignment  of  estates  for  years. (a) 

81.  Where  the  rent  is  reserved  to  no  one  in  particular,  it  shall  be 
payable  to  the  lessor  during  his  life,  and  after  his  death  shall  pass  with 
the  reversion  ;  and  any  doubtftd  word  shall  be  taken  in  that  sense 
which  will  best  answer  the  nature  of  the  contract.  Thus,  if  the  lessor 
is  a  tenant  in  special  tail,  and  reserves  the  rent  to  himself,  his  heirs  and 
assigns;  the  rent,  upon  his  death,  shall  pass  to  the  heir  in  tail. (8) 

82.  Lord  Coke  says,  that  if  a  les.sor  reserve  rent  generally,  without 
showing  to  whom  it  shall  go,  it  shall  go  to  his  heirs.  But,  in  the  sen- 
tence immediately  preceding,  he  says,  that  if  the  rent  be  reserved  to 
him,  and  not  to  him  and  his  heirs,  the  rent  shall  determine  by  his 
death  (4)(/>) 

38.  How  far  an  express  reservation  may  control  the  legal  dispo- 
sition of  a  rent,  seems  to  be  somewhat  doubtful.  It  is  said,  that  where 
the  law  particularizes  the  persons,  the  agreement  of  parties  prevents  the 
construction  of  law,  and,  if  the  reservation  is  special,  and  to  improper 
persons,  the  law  follows  the  words.  But  yet,  a  rent  reserved  to  the 
lessor  and  his  assigns  will  terminate  with  his  death.  So,  if  the  lessor, 
being  owner  of  the  inheritance,  reserves  the  rent  to  himself  and  his  ex- 
ecutors ;  or  if,  having  himself  only  a  leasehold,  he  reserves  the  rent  to 
his  heirs;  in  either  case,  the  rent  will  cease  at  his  death:  because  the 
representatives  to  whom  it  is  limited,  having  nor  eversion,  cannot  take 
the  rent  incident  thereto,  and  the  other  class,  to  whom  it  is  not  limited, 
cannot  take  it,  for  the  want  of  such  limitation.  But  if,  upon  a  lease 
made  by  the  owner  in  fee,  the  rent  is  reserved  to  himself,  his  executors, 
administrators,  and  assigns,  yearly,  f7»r«?5i' if/ie  term;  inasmuch   as   the 

(1)  Lit.  346 ;  Co.  Lit.  47  a,  143  b  ;  214  a  n.  i      (2)  Gates  v.  Frith,  Hob.  130. 
1;  Gilb.  Rents,  61;  2  RoUe  Abr.  447;  Sacb-        (3)  Ootber  v.  xMerrick,  Hard.  89. 
everell  v.  Froggatt,  2  Saun.  370.  '      (4)  Co.  Lilt.  47  a. 


(a)  Seech.  15. 

{b}  It  has  been  recently  held,  that  where  rent  is  reserved  generally  to  be  paid  quarterly 
during  the  term,  tlie  le;ise  does  not  terminate  on  tlie  death  of  tiie  lessor;  but  the  rent  is 
payable  to  liis  heirs,  if  he  dies  intestate,  who  may  maintain  an  action  of  debt  ou  the  lease 
to  recover  the  same.     Jacques  v.  Gould,  4  Cash.  384. 


CHAP.  XVI.]  RKNT.  235 

latter  clause  indicates  a  clear  iutciit  tliat  the  rent  should  notecase  with 
his  deatli,  it  will  pass  witli  the  reversion  to  his  heirs,  or  to  a  devisee.(i) 

81.  Where  the  owner  of  a  freehold  estate,  as  lor  instance  a  lenant 
pour  autre  vie,  to  him  and  his  heirs,  assigns  his  whole  estate,  leaving  no 
revei'sion  in  liimseHi  and  reserves  a  rent  to  himself,  his  executors,  ad- 
ministrators and  assigns,which  the  lessee  covenants  to  {la^  accordingly  ; 
the  rent,  upon  the  lessor's  death,  will  pass  to  his  personal  representa- 
tives, notwithstanding  a  provision  that,  on  non-payment,  he  and  /lis 
heirs  mifht  re-enter;  lor  the  heirs  would  be  mere  trustees  for  the  ex- 
ecutor.(2) 

85.  if  a  tenant  for  life  and  the  reversioner  join  in  a  lease,  resei'ving 
rent  generally,  it  will  go  to  the  former  during  his  lile,  and  then  to  the 
latter.(;->) 

36.  Where  a  tenant  for  life,  with  subsequent  limitations,  lea.ses,  under 
a  power  to  lease,  reserving  rent  to  those  in  reversion  or  remainder,  it 
has  been  doubted  what  disposition  the  law  would  make  of  the  rent  after 
his  death  :  because  the  lessee  comes  in  under  the  original  conveyance 
creating  the  power,  and  therefore  a  reservation  of  the  rent  to  the  heir 
of  tenant  for  life,  or  the  reversioner,  or  remainder-man,  they  not  being 
the  personal  representatives  ol  the  tenant,  would  be  void.  But  it  has 
since  been  settled,  that  such  reservation  is  good,  and  that  a  remainder- 
man, being  a  privy  in  estate,  may  distrain  ibr  the  rent.  In  such  case, 
the  most  clear  and  sure  way  is  to  reserve  the  rent  yearly  during  the 
term,  and  leave  the  law  to  make  the  distribution,  without  an  express 
reservation  to  any  person. (4) 

87.  With  regard  to  the  persons  to  whom  rent  may  be  reserved,  sub- 
stantially the  same  remaj'k  may  be  n'ade,  that  was  made  with  relerence 
to  the  property  out  of  which  rent  may  issue.  A  reservation  to  other 
persons  than  those  above  designated,  thougL  invalid  as  technically  a 
rent,  may  be  good  as  a  contract  Thus,  if  the  lessee  covenant  to  pay 
the  debts  of  the  lessor,  as  rent,  he  becomes  liable  as  a  trustee,  but  no 
distress  lies  against  him. (5) 

88.  From  what  has  been  said,  it  appears  that  rent  is  mcideui  to  the 
reversion.  Hence,  by  a  general  grant  of  the  latter,  the  former  will  also 
pass  ;  though  not  the  converse.  The  rent  may  be  separated  from  the 
reversion,  but  there  must  be  a  clear  inteniion,  or  a  necessary  implication, 
to  that  effect,  in  which  case  a  subsequent  grant  of  tlie  reversion  does  not 
pass  the  rent.  By  a  grant  of  the  reversion,  either  absolute  or  condi- 
tional, the  grantee  becomes  entitled  to  rents  which  fall  due  subse- 
quently, and  may  maintain  an  action  therefor,  unless  paid  before  notice 
of  the  sale  to  the  vendor,  in  virtue  of  the  assignee's  privity  of  estate 
with  the  tenant.  The  assignor  cannot  maintain  such  action.  Other- 
wise, with  rents  already  due;  and,  although  these  be  express!  3^  assigned, 
the  grantee  cannot  sue  for  them  in  his  own  name.  An  assignee  of  the 
reversion  will  be  entitled  to  the  whole  rent  of  the  current  quarter,  uot- 


(1)  Cotherv.  Essex,  Hard.  95;  Co  Lit.  47 
a,  and  notes  8,  9  ;  Wooton  v.  Eiiwin,  I'J  Rep. 
36;*  1  Veritr.  161;  Saeheverell  v.  Froggalt, 
2  Soun.  367,  and  notes. 

(2)  Jenison  v.  Lexington,  1  P.  Wms.  555. 


(3). Co.  Lit.  214  a. 

(4)  Chudleigira  caso.  1  Rep.  139  a;  Har- 
court  I'.  Pole,  1  And.  273;  2  Sauii.  369,  n  4. 
See  Lock  v.  De  Burgh,  6  Eng.  L.  &  Equ.  65. 

(5)  Ege  V.  Ege,  5  Watts,  134. 


*  Marginal  note.     "  This  caso  will  hardly  bo  hold  for  law  at  this  day.'' 


236  RENT.  [CHAP.  XVI. 

withstanding  a  parol  agreement  for  apportionment.  (See  ante,  cb.  14, 
sec.  Q'i.) 

3W.  A,  and  B  his  wife,  lease  land  jointly  owned  by  them,  reserving 
rent.  A  dies,  having  devised  the  reversion  to  B.  B  marries  C  and 
dies,  and  then  C  dies.  The  heirs  of  C  shall  not  have  the  rents 
accruing  after  his  death,  upon  the  ground  of  their  being  separated 
by  the  devise  from  the  reversion,  and  therefore  vesting  absolutely 
in  C.(l)(a) 

40.  Rent  in  arrear  (as  has  been  stated,  sec.  38,)  is  a  chose  in  action, 
not  by  law  assignable,  and  upon  which  an  assignee  cannot  sue  in  his 
own  name.  In  Delaware,  a  statute  provides,  that  such  rent  shall  not 
be  assignable  iviih  the  reversion. (2) 

41.  With  regard  to  the  time  when  rents  are  payahle,  it  is  said,  if  there 
is  no  express  stipulation,  they  are  payable  at  the  end  of  a  year.(3j(6) 

(1)  Sampson  v.  Grimes,  7  Blackf.  176;  [  (2)  Dela.  St.  1829,  370;  Demarest  v.  Wil- 
Peck  'J.  Northrop,  17  Conn.    217  ;  Burden  v.    lard.  8  Cow.  206. 

Th:iyer,  3  Met.  76;  Condit  v.  Neighbor,  1  |  (H)  Cole  u.  Surj^  Lat.  264;  Shuny  v.  Brown, 
Green,  83;  Miller  w  Stagner,  3  B.  Monr.  58;  j3  Balstr.  329;  i  Kent,  374;  3  Cruise,  194. 
Flinn  v.  Calow,  1  Man.  &  G.  589;  Childcrs  v.  See  Hopkins  v.  Helraore,  8  Ad.  &  KIL  463; 
o__:.,.    -.^  r,   w._    „.,r     ^-..^    _        T..,,.        1  .,,.      ..Culver,   3  D-^-   ""'      "--^  -■   *'" 

4  Barr.  146. 


Smith,  10  B.  Mon.   235;   Gil.bons  v.  Billing-  !  Allen  v.  Culver,    3  Denio,  284;  Bojd  v.  Mc- 
ham,    5  Eiig.   9;  Beach  «;.  Barons,  13  Barb.    Combs,  i  ~ 


305 


{a)  "Where  tlie  owner  of  lands  leased  them  for  years,  and  gave  the  lessee  the  right  to 
make  certain  improvements,  upon  obtaining  authority  from  the  legislature  or  city  counsel, 
and  also  reserved  a  right  of  entr}'  and  distress;  and  afterwards  sold  his  reversion,  and  the 
purchaser  recovered  the  premises  for  noii  payment  of  rent;  held,  the  right  to  enter,  and 
make  and  hold  the  improvements,  passed  to  tiie  purchaser.  City  of  Baltimore  v.  "White,  2 
Gill,  444. 

A  purchaser  of  land  at  sheriff's  sale  is  entitled  to  rent  from  the  day  of  sale.  Stayton  v. 
Morns  4  Harring.  224. 

Where  land  thus  sold  is  in  possession  of  a  tenant,  the  purchaser  has  a  remedy  hy  distress, 
or  attachment  to  recover  rent  against  a  person  occupying  by  actual  demise;  and  he  may  re- 
cover from  any  occupant  a  reasonable  compensation,  in  the  action  for  use  and  occupation. 
lb.  Such  purchaser  is  not  liable  for  a  ground-rent,  accruing  between  the  time  of  sale  aud 
the  rime  of  taking  the  deed.     Thomas  v.  Connell,  5  Barr.  13. 

Where  a  lessor  assigns  all  his  real  estate  in  trust  for  the  payment  of  his  debts,  the  trustee 
is  the  proper  person  to  bring  an  action  for  rent  accruing  subsequent  to  the  assignment. 
Ryerss  v.  Farwell,  9  Barb.  615. 

Where  a  surety  of  a  lessee,  by  a  separate  covenant,  guaranties  the  payment  of  the  rent 
and  the  performance  of  the  covenants  of  the  lease,  such  separate  coven.int  passes  to  the 
grantee  of  the  reversion,  and  enables  him  to  maintain  an  action  against  the  surety  in  his 
own  name  for  a  breach  of  his  covenant.  Allen  v.  Culver,  3  Denio,  284 ;  Peck  v.  Northrop, 
17  Coim.  217. 

(6)  More  especially,  in  case  of  a  lease  for  one  year.  Menough,  5  Watts  k  S.  432.  Bease 
for  three  years,  "at  the  rent  of  $800,  yearly,"  which  was  to  be  paid  semi-annually.  Held, 
an  annual  rent;  and  that  the  sum  of  $400,  paid  after  six  months,  must  be  considered  as  a 
portion  of  such  annual  rent.     Irving  v.  Thomas,  6  Shepl.  418. 

Where  a  lease  contains  a  stipulatitm  for  a  rent  in  kind,  without  specification  of  the  day 
of  payment,  it  is  payable  at  the  expiration  of  the  year;  and  an  assignment  of  the  rent  by 
an  ordur  on  the  tenant,  accepted  by  him,  will  not  pass  the  right  to  the  rent,  as  agauist  the 
purchaser  from  the  sheriff's  vendee  of  the  landlord's  estate,  under  a  judgment  prior  to  the 
lease.     Boyd  v.  McCombs,  4  Barr,  146 

Payments  made  by  a  tenant  to  his  landlord  on  account  of  rent,  generally,  will,  in  the  ab- 
sence of  any  direction  or  agreement,  be  applied  by  law  on  the  rent  due  at  the  time,  and 
not  on  the  rent  then  accruing.     Hunter  v  O.-^terhoudt,  11  Barb.  33. 

Where,  as  between  lessor  and  lessee,  the  right  existed  to  quarry  and  take  away  granite 
stone,  and  a  payment  was  made,  under  an  agreement  that  tne  same  should  be  applied  to 
the  quarry  rents  therejifter  to  become  due,  and  the  lessor  retained  the  money;  held,  he 
could  not  set  up,  in  opposition  to  the  application  of  such  payment  of  rent,  another  claim 


CHAP.  XVI.]         .  RENT.  237 

But  usage  will  control  this  presumption,  and  render  them  payable  semi- 
annually or  quarterly.  In  the  ciiy  of  New  York,  rents  arc  made  paya- 
ble  quartei'ly. 

42.  And  this  legal  implication  will  be  controlled  by  any  express 
agreement. 

48.  If  the  rent  is  made  payable  armualhj  during  the4€rm^  the  first 
payment  to  begin  two  years  after,  the  latter  clause  shall  prevail.(l) 

44.  If  rent  is  reserved  to  be  paid  at  two  certain  periods,  an  equal 
portion  of  the  whole  shall  be  paid  at  each. (2) 

45.  If  rent  is  made  payable  at  two  certain  times,  or  within  thirteen 
weeks  thereafter,  the  latter  clause  is  for  the  benefit  of  the  tenant,  and 
the  rent  is  not  due  till  the  end  of  the  thirteen  weeks.  Uence,  if  the 
lessor  were  a  tenant  for  life  and  die  before  this  time,  his  executors  can- 
not sue  for  the  rent.  But  if  it  were  merely  provided  that,  unless  the 
rent  were  paid  within  thirteen  weeks  from  the  time  fixed,  the  lessor 
might  re-enter;  this  would  be  only  a  dispensation  of  the  entry,  and 
the  rent  would  be  due  at  the  appointed  day.  And  the  extension  of 
time  above  mentioned  is  granted,  only  during  the  continuance  of  the 
contract,  and  for  the  instalments  of  rent  ])rior  to  the  last.  The  last  in- 
stalment is  payable  on  the  day  specified,  upon  which  the  lease  itself 
terminates.(o) 

46.  It  has  been  stated  that  a  rent,  before  it  is  due,  is  incident  to  the 
reversion,  and,  therefore,  real  estate.  But  after  it  is  due,  it  is  personal 
estate.  In  the  former  case,  as  has  been  seen,  (sec,  88,)  it  passes  to  a 
grantee  of  the  reversion.  So,  upon  the  death  of  the  landlord,  it  goes 
to  his  heir.  But  in  the  latter  case,  it  does  not  thus  pass;  and,  upon 
the  landlord's  death,  goes  to  his  executor  or  administrator.  It  seems, 
at  common  law,  neither  the  heir  nor  executor  of  a  lessor  could  recover 
rent  after  his  death,  which  was  due  in  his  lifetime ;  but  Statute  c2  Henry 
VIIL,  c.  87  (8  Ruff.  St.  297,)  provided  otherwise.(ot) 


(1)  lb. 

(3)  2  Rolle's  Abr.  450. 

(2)  Cluu'a  case,   10   Rep.   127;  Glover  v. 


Archer,  4  Leon.  247  ;  Barwiok  v.  Foster,  Cro. 
Jac.  233,  310;  Bigcrin  v.  Bridge,  SLooii.  211  ; 
Morris  v.  Kiffiii,  3  Keb.  534. 


ag  Tor  rubble  stone,  though  connected  with  the  quarry, 'due  from  the  lessee  to  him.  Giles  v* 
Comstoc'k,  4  Comst.  270;  Emery  v.  Owings,  6  Gill,  191. 

(rt)  Rent  fiilliiig  (lu°  after  the  lessor's  death,  has  been  called  a  chattel  real.  Green  v.  Mas- 
sie,  13  Illin.  363.  In  Pennsylvania,  a  tenant  m;iy  bequeath,  .i.'*  personalty,  any  rent  or  other 
periodical  payment  which  is  due.  Park  k  J,  4G7.  In  New  York,  a  purchaser  of  the  land 
cannot  claim  rent  for  a  year  prior  to  the  purchase;  but  only  from  the  next  preceding 
quarter-day;  uidess  it  be  otherwi.se  agreed.  Ruckm.an  v,  Astor,  3  Edw.  373.  It  lias  been 
held  in  Maine,  that  all  the  rents  and  income  of  an  estate,  whicli  have  accumulated,  and  not 
so  disconnected  aw  to  become  personal  property,  pass  by  a  conveyance  of  the  land.  Wins- 
low  V-  Rand,  29  Maine,  3G2. 

Where,  by  .i  lease  iu  perpetuity,  the  lessee  covenanted  to  pay  all  taxes  that  might  be 
therea'ter  assessed  upon  tiie  premises,  or  upon  the  Icsisor,  his  heirs,  &c,,  by  any  act  of  the 
legi>!laturo,  lor  and  in  respect  of  the  said  premises,  or  any  part  tliereof;  held,  the  tenant 
was  not  liable,  under  this  covenant,  to  pay  to  the  landlord  the  amount  of  a  tax  on  the  rents 
reserved  in  the  lease,  which  the  latter  had  been  compelled  to  pay  under  an  act  passed  May 
13,  1846,  entitled  "an  act  to  equalize  taxation  ;"  such  tax  being  a  tax  on  rents  issuing  out 
of  the  granted  premises,  properly  declared  by  the  act  to  bo  for  the  purpose  of  taxation  of  per- 
sonal estate.     Van  Rensselaer  v.  Dennison,  8  Barb.  23. 

An  administrator  cannot,  by  a  bill  in  equity,  procure  a  sum  due  for  rent  of  land  of  the 
intestate,  accruing,  after  iiis  deatli,  from  a  creditor,  to  be  set  off  against  a  judgment  obtained 
by  such  creditor  agaiust  himself  as  administrator;  for  the  administrator  lias  nothing  to  do 


238  RENT.  [CHAP.  XVI. 

47.  Rent  is  said  to  pass  prima  facie  to  the  heir,  unless  the  lessor  had 
a  mere  chattel  interest.  Hence,  if  the  executor  claims  it,  he  is  bound 
to  prove  his  title. (1) 

48.  Kent,  in  general,  is  not  due  till  the  last  minute  of  the  natural 
day  on  which  it  is  made  payable.  Hence,  if  the  lessor  die  during  that 
day,  the  rent  passes  to  his  heir.  This  rule  applies,  however,  only  to 
leases  by  owners  in  fee,  or  under  a  power.  Where  a  lease  is  made  by 
a  mere  tenant  for  life,  if  he  die  at  any  time  during  the  day  when  the 
rent  is  payable,  it  passes  to  his  executors.  Though,  for  the  benefit  of 
the  lessee,  he  has  till  the  last  instant  of  the  day  to  pay  the  rent,  yet,  it 
is  said,  as  soon  as  that  da}^  begins,  he  is  at  his  peril  to  take  care  that  it 
be  paid.  And  more  especial!}^  does  the  principle  apply,  where  the 
tenant  for  life  dies  after  sunset  of  that  day;  because  he  is  bound  then 
to  pay,  under  penalty  of  forfeiting  his  lease  after  demand. (2)(rt) 

49.  In  case  of  a  lease  by  tenant  for  life  under  a  power,  it  has  even 
been  held,  that  where  the  tenant  had  received  the  rent  before  sunset 
on  the  day  when  it  was  payable,  his  executors  should  pay  it  over  to 
the  remainder-man.     This  decision,  however,  has  been  doubted. (3) 

60.  At  common  law,  there  could  be  no  apportionment  of  rents  as  to 
time,  either  in  law  or  equit}'.  Hence,  when  a  lessor,  tenant  for  life, 
died  before  rent  day,  the  rent  was  lost.  But  the  Statute  11  Geo.  2,  ch. 
19,  provides  otherwise.  (See  ch.  17,  s.  28,  supra,  s.  32,  n.  b.)  And  in 
New  York,  New  Jersey,  Michigan,  Missouri  and  Delaware,(J)  statutes 
provide,  that  if  a  tenant  for  life,  lessor,  die  on  the  rent  day,  his  execu- 


(1)  1  Cruise,  195-7  ;  2  Ky.  Rev.  L.  1349; 
"Williamson  v.  Richardson,  6  Men.  595 ;  Bur- 
den V.  Thayer,  3  Met   76. 

(2)  Duppa  V.  Mayo,   1   Saun.   287,    n.    17 


Southern  v.  Bellasis,  1  P.  Wms.  179;  Straf-    178. 


ford  V.  Wentworth,  1  P.  Wms.  180;  Prec.  ia 
Chan.  555  ;  Dunu  v.  Di  Nuovo,  3  Mann.  &  G. 
105. 

(3)  Rockingham   v.    Penrice,    1  P.   "Wms. 


with  the  realty  of  his  intestate,  unless  his  estato  has  been  declared  insolvent.     Bullock  v. 
Sneed,  13  S.  &  M.  293. 

"Where  an  administrator  leases  lands  of  the  deceased,  tlie  tetiant  cannot  resist  pay- 
ment of  the  rent  on  the  Ki'ou'id  that  the  premises  were  sold  to  pay  a  debt  of  the  intestate, 
if  the  tenant  occupied  the  premises  until  the  end  of  the  term.  Life  v.  Secrest,  1  Smith,  319. 

Where  a  testator  left  his  estate  to  remain  undivided  until  the  death  of  Iiis  wife,  and  the 
income,  in  the  meantime,  to  be  divided  between  her  and  her  son  and  dauohter,  equally, 
and  at  lier  death  the  estate  to  be  divided  between  the  son  and  daughter;  held,  before  the 
death  of  the  widow,  the  daughter's  husband  could  not  distrain  for  rent  due  the  estate  ;  and 
that  the  executor  only  could  do  so.     Reid  v.  Sidney,  1  Strobhart,  182. 

A  dtvisee  of  one  who  has  granted  land  in  fee,  subject  to  rent,  cannot  maintain  ejectment 
for  rer)t  in  arrear,  which  became  payable  in  the  lifetime  of  the  testator,  but  only  for  such  as 
has  accrued  since  the  will  took  effect  in  his  favor;  and,  if  he  bring  ejectment,  under  the 
statute,  in  New  York,  Ibr  rent  which  became  due  since  his  title  as  devisee  accrued,  he  must 
show  tliat  there  was  no  sullicient  distres.s  to  pay  such  rent  at  the  time  of  bringing  the  ac- 
tion. It  will  not  be  sullii-ient  to  shovv  that  the  pro[)erty  on  the  premises  was  inadequate  to 
pay  that  rent,  together  with  other  rent  in  arrear,  which  accrued  during  the  testator's  life- 
time.    Vtin  Ken.sselaer  v.  Hayes,  5  Denio,  477. 

If  the  lessor  leave  more  heirs  than  one,  the  rent  is  apportioned  among  them,  and  the  ten- 
ant is  bound  to  pay  each  his  share.  Crosby  v.  Loop,  is  Illin.  625;  Cole  v.  Patterson,  25 
"Wend.  456. 

(a)  If  a  lease  for  years,  which  terminates  by  the  death  of  the  lessor,  contains  a  covenant, 
on  the  part  of  the  lest^ee,  to  pay  the  rent  reserved,  and  for  such  further  time  as  he  may  hold 
the  premises,  and  he  holds  over  after  the  death  of  tlie  lessor;  ho  Will  be  liable  to  pay  tlie 
rent  sui)sequently  accruing.     Jaques  v.  Gould,  4  Cnsh.  384. 

(h)  Tenant  for  life,  or  upon  any  conUngenry.  In  this  State,  if  rent  have  been  pai<l  in  ad- 
vance, so  nmch  as  applied  to  tliat  part  of  the  term  which  is  destroyed  by  the  lessor's  death 
shall  be  refunded. 


CHAP.  XTI.] 


RENT. 


239 


tors  may  recover  the  whole  rent  ;  if  before,  a  proportion.'il  part  of  it. 
In  Missouri,  Kentuckv,(a)  Dela\v:irc  and  New  York,  where  one  is  en- 
titled to  rents  depending  on  the  life  of  another,  he  may  recover  them, 
notwithstanding  the  death  of  the  latter.  In  Delaware,  Virginia,  Mis- 
souri and  Iventuck}'-,  it  is  specially  provided  that  a  husnand,  after  the 
death  of  his  wife,  may  recover  the  rents  of  her  lands.p-X^) 

51.  Rent,  before  the  appointed  day  of  payment,  is  not  dehilura  in 
pra^senti,  solvendnm  in  futaro^  but  is  a  contingent  claim,  liable  to  be 
wholly  defeated  by  many  intervening  acts  or  events.(2)(c) 

52.  For  the  recovery  of  rents,  the  law  has  provided  several  remedies. 
68.  The  first  is  a  distress.     At  common  law,  this  was  ai^plicable  oidy 

to  a  rent  service;  but  it  has  been  extended  by  statutes  to  the  other  kinds 
of  rents ;  and,  also,  to  the  executors  or  administrators  of  the  proprietors, 
after  the  determination  of  their  leases.(3) 

51:.  Distress  is  the  seizure  of  a  tenant's  cattle  or  other  personal  prop- 
erty upon  the  land,  for  non-payment  of  rent,  for  the  purpose  and  with 
the  right  of  selling  them  to  obtain  payment. 

55.  It  is  said(4)  there  never  has  been  a  process  of  distress  for. rent 
in  Massachusetts,  and  probably  the  right  does  not  exist.  Tlie  latter 
remark  is  true  of  the  other  New  England  States,  and  the  States  of 
Alabama,  Mississippi,  North  Carolina  and  Ohio.(rZ)  In  Kentucky,  a 
distress  lies  only  for  pecuniary  rent,  which  is  actually  due.(5)('') 

56.  A  reversion  is  necessary  to  the  remedy  of  distress.  Hence,  if  a 
lessee  assign,  reserving  rent,  he  cannot  distrain,  unless  it  is  so  agreed. 
Otherwise,  where  he  underlets.(6)(/) 


(t)  3  Kent,  37G;  Misso.  St.  376;  1  X.  J. 
Rev.  St.  186-7  ;  1  N.  Y.  Rev.  St.  747  :  1  Vir. 
Rev.  C.  156  ;  2  Ky.  Rev.  I-.  1351 ;  Dela.  St. 
1829,  365.     See  infra,  c.  17,  sec.  28. 

(2)  Wood  V.  Partridjie,  11  Mass.  493  ; 
Bank,  Ac.  v.  Wise,  3  Watts,  402. 

(3)  3  Cruise,  197. 


(4)  4  Dane,  126;  Wait,  &c.,  7  Pick.  105; 
Aik.  Dig.  357-   4  Gritf.  1143;   3,  404. 

(5)  Owen  v.  Boyle,  9  Sliepl.  47 ;  Mayor,  &c.  v. 
Pearl,  11 -Humph.  249;  Howards.  Dill, 
7   Geo.  52. 

(6)  Ege  V.  Ege,  5  Watts,  134. 


(a)  Another  statute  provides,  that  where  a  lessor,  having  a  life  estate  or  other  uncertain 
interest,  dies  before  the  rent  is  due,  it  shall  be  divided  between  his  executor  or  adminis- 
trator, and  the  heir,  devisee,  reversioner  or  remainder-man.  A  similar  provision  in  Virginia. 
1  Ky  Rev.  L.  668  ;  1  Virg.  Rev.  C.  166.  la  North  Carolina,  the  common  law  rule  is  re- 
cognized.    Gee  V.  Gee,  2  Dev.  &  B.  113. 

(b)  A  similar  statute  to  those  above  mentioned  exists  in  Arkansas.  Rev.  St.  519.  By 
St.  4  &  5  Wm.  4,  ch.  22.  where  any  lease  determines  on  the  death  of  the  lessor,  though  not 
strictly  a  tenant  for  life,  or  on  expiration  of  the  life  or  lives  for  which  ho  was  entitled,  a 
proportion  of  the  rent  shall  be  recoverable  l)y  him  or  his  representatives.  1  Steph.  Comm. 
244.  Tiie  provision  as  to  apportionment  does  not  apply,  where  the  death  of  a  party  does 
not  end  his  estiue  :  or  as  betsveen  his  heir  and  executor.     Browne  v.  Aniyot,  3  Hare,  173. 

(c)  If  a  rent  falls  due  after  u'elivery  of  a  writ  of  el>-git  to  the  officer,  but  before  inquisition, 
he  is  nut  entitled  to  it.     Sharp,  v.  Key,  8  Mees.  &  W.  379. 

(d)  In  New  York,  it  has  lieen  recently  aliolisiied.  Sts.  1846,  3G9.  This  act  does  nothing 
more  tlrm  chinge  the  remedy,  leaving  the  obligation  of  the  contract  unimpaired,  and  a  sub- 
stantial remedy  still  exist:n<r:  and  is  not  liable  to  any  con.-itiiuiional  objection.  Guild  r. 
Roger.').  8  Barb.  502.     See  Williams  v.  Potter,  2  B.irb.  316. 

(e)  Under  the  Kentucky  Statute  of  1748,  giving  damages  in  double  the  amount  of  the 
goods  distrained,  where  a  distress  is  made  Ijefore  the  rent  falls  due;  to  entitle  liio  party  to 
recover  such  damaL'es,  there  must  have  been  a  sale  under  the  distress  before  tiie  rent  be- 
comes due.     Fry  v.  Breckinridge,  7  B.  Mon   31. 

(/)  Numerous  cases  are  liiund  in  the  books,  relating  to  the  remedy  of  di-stresi :  but,  as  it  is  in 
the  Uiiitfd  States,  to  a  great  extent,  superseded  by  other  forms  of  action,  only  a  few  of  the 
later  deci.sions  need  be  cited. 

A  distress  fur  rent  does  not  lie  where  the  tenatit's  contract  is  to  deliver  a  certain  number 
of  bushels  of  wlieat,  corn,  oats,  &c.,  for  each  acre  of  ground  cultivated  in  liioso  kinds  of 


24:0  RENT.  [CriAP.  XTI. 

57.  A  lease,  or  grant  of  a  reut-cliarge,  or  conveyance  in  fee,  re- 
grain  ;  nor  can  the  landlord  in  such  case  claim  rent  out  of  the  proceeds  of  a  sale,  on  another 
person's  execution,  of  tiie  tenant's  goods.     Bowser  v.  Scott,  8  Blaekf.  86. 

A  tenant  contracted  lo  pay  annuallj',  for  the  rent  of  certain  real  estate,  $9G,  in  Indiana 
scrip.  Held,  the  remedy  by  distress  did  not  lie  on  such  contract.  Purcell  v.  Tiiomas,  7 
Blackf  306. 

Under  the  statutes  of  Mi.«sissippi,  an  equity  of  redemption,  and  any  limited  interest  of  the 
tenant,  is  liable  to  be  distrained,  and  to  be  sold  in  satisfaction  of  the  rent  due  from  him. 
Prewett  v.  Dobbs,  13  S.  &  M.  431. 

The  proods  of  a  stranger  found  on  demi.sed  premises  are  liable  to  be  distrained.  unlf-.ss  spe- 
cially exempted  by  the  common  law,  or  by  statute.     Stevens  v.  Lodge,  7  Blackf.  594. 

Goods  were  mortgaged  by  a  tenant,  and  left  in  the  tenant's  possession,  by  an  agreement 
in  the  mortgage.  Held,  the  facts  that  the  mortgage  was  recorded,  and  tliat  the  landlord 
had  made  no  objection  to  the  goods  remaining  on  the  premi.ses,  were  no  evidence  that  the 
goods  were  on  the  premises  with  the  landlord's  consent,     lb. 

It  seems  tliat,  before  the  statute  of  New  York  abolishing  distress  for  rent,  a  landlord 
might  distrain  for  rent  after  administration  granted  on  the  estate  of  the  tenant,  altliough  he 
could  not  before,  and  after  the  death  of  the  tenant.     Hovey  v.  Smith,  1  Barb.  372. 

A  landlord,  by  accepting  administration  of  the  tenant's  estate,  waives  his  right  to  dis- 
train,    lb. 

A  distress  for  rent  can  be  made  only  in  the  day  time,  between  sunrise  and  sunset,  that 
the  tenant  may  have  opportunity  to  tender  the  rent.  lb.  Fry  v.  Breckeuridge,  7  B. 
Mon.  31. 

A  landlord,  in  order  to  distrain,  may  open  the  outer  door  in  the  ordinary  way.  Where, 
therefore,  the  door  of  a  stable  was  kept  closed  by  a  padlock  attached  to  a  movable  staple, 
and  the  owner  and  other  persons  usuallv  opened  the  door  by  pulling  out  the  staple  ;  held, 
a  distress  upon  goods  in  llie  stable  was  legal.  Ryan  v.  Shilcock,  8  Eng.  Law  and  Eq.  503. 
Qucere,  whether  a  distress  is  void  when  the  outer  door  is  improperly  broken.     lb. 

A  landlord  has  no  authoritj'^  to  break  open,  forcibly,  a  door  which  is  barred  or  bolted,  for 
the  purpose  of  levying  a  distress,  though  the  property  be  fraudulently  deposited  in  the  house 
to  prevent  a  distress.     Dent  v.  Hancock,  5  Gill,  120. 

When  the  relation  of  landlord  and  tenant  existed  to  the  end  of  the  year  1843,  the  rent 
■was  in  arrear,  and  the  landlord,  in  1844,  had  rented  the  premises  to  another  person,  but  the 
first  tenant  had  locked  up  a  quantity  of  tobacco  in  a  barn  on  the  premises,  whicii  the  land- 
lord; by  breakiifg  into  the  barn,  liad  taken  as  a  distress;  held,  the  fact  that  the  first  tenant 
was  not  in  possession  when  the  distress  was  levied,  would  not  make  the  entry  for  the  pur- 
pose of  a  distress  lawful.     lb. 

Although,  to  levy  a  distress,  a  landlord,  for  the  purpose  of  making  it,  and  not  acting  in 
conformitj''  to  the  statute,  is  not  authorized  to  break  open  and  enter  the  door  of  a  barn  which 
is  barred  or  bolted,  with  a  view  to  prevent  from  without  an  entry  thereat;  yet.  if  the  door  is 
simply  shut  or  lached,  with  the  ordinary  means  of  raising  tlie  lach  left  on  the  outside,  au 
entry  is  lawful ;  and.  if  a  door  so  bolted  or  barred  is  forcibly  broken  open  by  a  person  not 
acting  under  the  autiiority  or  sanction,  or  at  the  instance,  of  the  landlord  or  his  bailiff,  the 
person  required  to  make  such  distress  is  authorized  to  enter  for  that  purpose  at  the  door 
thus  forcibly  broken  open.     lb. 

The  right  of  distraining  is  lost  by  a  surrender  of  the  term,  although  with  the  surrender 
there  is  a  stipulation  to  pay  rent.  The  Pennsylvania  statute  of  1836,  sees.  83  and  84,  relat- 
ing to  executions,  does  not  protect  a  landlord  in  such  case,  and  a  surrender,  after  a  levy  of 
an  execution  against  the  tenant  on  his  property  found  on  the  demised  premises,  destroys 
the  right  of  the  landlord  to  such  property  by  distress,  by  the  statute  or  otherwise.  Greider'a 
Appeal,  5  Barn,  422. 

But  a  surrender  of  the  premises  after  distress  does  not  avoid  such  distress.  Nichols  v. 
Dusenbury,  2  Conist.  283.     See  Webber  v.  Shearman,  2  Denio,  362. 

Tlje  Kentucky  statute  of  1842,  concerning  the  action  of  replevin,  does  not  restrict  a  tenant, 
who  has  been  di.strained  upon,  to  his  remedy  against  the  landlord ;  and  he  may  sue  the 
ofBcer  who  served  the  distress  warrant  also.     Powell  v.  Triplett,  6  B.  Mon.  420. 

An  officer,  in  making  a  distress  for  rent  under  a  landlord's  warrant,  does  not  act  in  his 
official  capacity,  but  merely  as  the  bailiff  of  the  landlord;  and  the  landlord  is  in  eflect  the 
distrainor.     Moulton  v  Norton,  5  Barb.  286. 

A  sheriff,  therefore,  is  not  responsible  for  the  acts  of  hfs  deputy.     lb. 

The  legislature  of  New  York,  in  making  it  necessary  to  employ  certain  officers  to  serve 
such  warrants,  did  not  make  the  service  of  them  an  official  act  of  such  officers,     lb. 

To  justify  in  making  a  distress,  the  officer  serving  the  warrant  must  go  back  of  it,  and 
show  an  actual  demise  and  rent  due.     lb. 

In  trespass  against  the  slieriQ',  by  one  whose  goods  have  been  taken  on  a  distress  warrant, 
the  landlord  is  incompetent  to  testify  ou  behalf  of  the  defendant,  on  account  of  interest; 


CHAP.  XVL]  RENT.  241 

serving  rent,  usually  contains  a  condition, (r/)  that  if  the  rent  shall  not 
be  paid  when  due,  the  lessor  or  grantee  may  re-enter,  and  either  de- 
termine the  lease,  or  hold  till  he  shall  be  satisfied,  or  receive  the  profits 
in  satisfaction. (/>)  In  the  first  case,  the  entry  absolutely  defeats  and 
determines  the  lessee's  estate  ;  in  the  second,  the  lessor  is  entitled  to  the 
profits  of  the  land  for  his  own  use,  until  the  rent  bejpaid— the  ol)ject 
of  such  provi.sion  being  merely  to  hasten  payment;  and'in  the  last,  the 
profits  shall  be  applied  in  payment  of  the  rent,  and  when  paid,  or  after 
tender  upon  the  land  of  what  remains  due,  the  lessee  shall  have  the 
land  restored  to  him.  A  court  of  equity,  however,  makes  no  distinc- 
tion between  the  two  last  mentioned  cases,  but  compels  the  lessor  to 
account  for  the  surplus  received  from  the  land,  after  paying  the  rent 
and  charges.  Where  the  lessor  enters  to  take  the  profits,  he  acquires 
no  freehold,  but  an  interest  in  nature  of  a  distress,  which  on  his  death 
passes  to  the  executor,  not  to  the  heir,  though  expressly  reserved  to 
the  latter.  And  a  proviso  for  such  entry  is  ncH  strictly  a  condllion, 
which,  as  will  be  seen  hereafter,  must  determine  the  whole  estate  ;  but  a 

tliere  beinp  an  implied  contract  on  the  part  of  the  landlord,  to  indemnify  tlie  person  to  whom 
he  directs  his  warrant,  if  he  had  no  authority  to  distrain.     Lord  v.  Brown,  5  Denio,  .'545. 

In  trespass,  wliere  tiie  defendant  justifies  under  a  distress  warrant,  for  rent  in  arrear,  and 
the  plaintiff  held  under  a  lease,  such  lease  must  be  produced  by  the  defendant ;  and  it  will 
not  lie  sufficient  for  him  to  show  that  the  plaintiff  had  recognized  tiie  person  who  issued 
the  distress  warrant,  as  assignee  o^  the  lessor,  and  had  paid  liim  rent  prior  to  the  accruing 
of  that  for  which  the  distress  was  made.     lb. 

See  further  Ridgway  v.  Stallbrd,  4  Kng.  L.  &  Kqu.  453 ;  Nicliols  v.  Dusenbury,  2  Comst. 
283  ;  Moultou  V.  Norton,  5  Barb.  286;  Stone  v.  Matthews,  7  Hill.  428;  Butts  v.Kdwards 
2  Denio,  1G4;  Delaware  Rev.  Sts.  ch.  120,  (wliere  distress  lies  for  any  rent  which  may  be 
reduced  to  a  certainty,  but  is  limited  to  two  years;)  New  Jersey  Sts.  1851,  347. 

(a)  In  Georgia,  a  statute  provides,  that  when  the  rent  becomes  due  and  is  unpaid  the 
lessor  may  re-enter.  It  seems,  no  condition  in  the  lease  is  necessary.  Prince,  687.  '  See 
Van  Rensselaer  u.  Ilolbrook,  1  La.  Ann.  180.  But  this  is  contrary  to  tiie  general  rule 
Keuege  v.  Klliott,  9  Watts,  258.  So,  in  Vermont,  ejectment  lies  for  non-payment  of  rent' 
without  demand  or  re-entry.  But  the  suit  may  be  stopped  by  a  payment  into  court.  Verm.' 
Rev.  St.  216.  In  Maine  it  is  held,  that  in  a  suit  by  a  lessee  upon  the  covenants  in  the 
lease,  the  defendant  cannot  set  up  as  a  defence  a  process  of  forcif>le  entry  sued  out  by  him 
upon  which  no  judgment  has  been  rendered,  to  prove  an  entry  for  breach  of  condition' 
Wheeler  v.  Hill,  4  Shepl.  329.  In  New  York,  the  landlord  may  re-enter  after  tifieen  days' 
notice.     Sts.  1846,  369.     A  suit  lies  williout  entry,  Lawrence  v.  William.s,  1  Duer,  585 

In  Massaciiusetts  it  is  held  that  the  court  has  authority,  by  the  common  law,  to  stay  proceed- 
ings in  a  writ  of  entry  brought  to  enforce  a  forfeiture,"  designed  to  secure  the  payment  of 
rent,  and  incurred  by  accident  or  mistake,  upon  the  tenant's  bringing  the  amount  of  the 
rent,  iutercst  and  costs  into  court,  for  the  demandant.     Atkins  v.  Chilson,  II  Met.  112 

A  lessee  incurred  the  forfeiture  of  his  term  by  tendering  a  quarter's  rent,  throuc'^h  ni'istake 
a  day  or  two  before  it  was  due,  and  omitting  to  pay  it  on  tiie  quarter  day.  Tho^'lessor  had 
refused  to  receive  the  rent  lor  several  previous  quarters,  and  had  an  action  pendlno-  against 
the  lessee,  to  recover  the  demised  premi.ses,  on  tiie  ground  of  another  alleged  cause  of  for- 
feiture. Alter  failing  in  that  action,  the  lessor  brought  a  writ  of  entry  against  the  les>^ee  to 
recover  the  premises,  on  the  ground  of  the  forfeiture  by  non-payment  of  the  afore.said  quar- 
ters rent.  Held,  tiie  proceedings  in  this  last  action  should  be  stayed,  on  the  lessee's  paying 
to  the  lessor,  or  bringing  nito  court  for  his  acceptance,  tlie  lull  amount  of  the  rent  in  arrear 
with  interest  thereon  and  costs.     lb.  ' 

In  tlie  same  State,  it  is  now  enacted,  (Sts.  1847,  440,)  that,  after  fourteen  days'  notice,  the 
landlord  may  bring  a  summary  process  for  possession.  But  payment,  or  tender,  before 
judgment,  prevents  a  forfeiture. 

In  Missouri,  if;  by  the  terms  of  a  lease,  rent  is  to  be  paid  on  a  certain  day  and  if  not 
paid  within  ten  days  thereafter,  the  lea.se  to  bo  forfeited,  a  tender  before  the  day  the  rent  is 
due  will  not  prevent  a  forleituro.     Iliingworth  v.  Miltenberger,  11  Mis.  80. 

(6)  Where  it  is  provided,  first,  tiiat  in  case  of  the  non-payment  of  rent,  the  lease  shall 
ixa^e  and  d'denmae,  and  afterwards  that  the  landlord  may  rt-enter ;  an  entry  is  necessary  to 
restore  his  title.     Stuyvesaut  v.  Davis,  9  Paige,  427. 

Vol.  I  16 


242  I^EXT.  [CHAP.  XVL 

limitation  to  the  lessor  on  failure  of  payment,  and  upon  payment  back 
again  to  the  Itssee.(l) 

58.  For  the  purpose  of  distress,  no  previous  demand  of  the  rent  is 
necessary,  or,  if  expressly  required,  it  may  be  made  after  the  day 
when  the  rent  falls  due.(a)  But  an  entry  for  breach  of  condition,  if 
made  before  such  demand,  is  tortious.  It  is  said,  that  the  condition 
is  in  derogation  of  the  grant,  and  that  the  tenant  is  to  be  presumed  to 
be  residing  on  the  premises  in  order  to  pay  the  rent,  for  the  preserva- 
tion of  the  estate,  unless  the  contrary  appears,  by  the  feoffor's  being 
there  to  demand  it  and  actually  making  a  demand,  and  by  the  tenant's 
wilful  default.(2) 

59.  But  if  the  lease  provides  that  the  lessor  may  enter  "without 
further  notice  or  demand,"  when  the  rent  is  due,  no  demand  is  neces- 
sary.(3)(/.)  .,        ,        • 

59  a.  Sometimes  the  clause  of  re-entry  expressly  provides  that  it 
shall  be  peaceable.  Upon  this  point  the  following  case  has  recently 
arisen  in  Massachusetts.  By  the  Revised  Statutes,  (p.  184,  sec.  1,)  entry 
into  lands  and  tenements  must  be  made  peaceably.  A  lease  provided, 
that  upon  breach  of  any  covenant  the  lessor  might  enter  and  expel  the 
lessee  by  force,  if  necessary.  Hdd,  a  legal  provision,  and  that  under 
it,  the  lessor  could  not  use  such  force  as  would  constitute  a  breach  of 
the  peace,  but  only  what  would  sustain  the  plea  of  '■^molliter  maniis,^\4i) 

(1)  Lit.  327  ;   Co.  Lit.  203  a  ;   lb.  n.  2  &  3  ;  |       (2)  Co.  Lit.   144  a  ;   M'Murpliy  v.  Minot,  4 
Jemmot  v  Coolj,    1  Lev.  170;   T.    Ray.   135.     N.  H.  251  ;  Gilb   173.     See  4  Dane,  127. 
158  :   Warteuby  v.  Moran,  3  Call,  424  ;  Far-        (3)  Filty,  &c.  v.  Hovvland,  5  Cush.  214. 
ley  V.  Craig,  6   Halst.  270-1.     See  Western,        (4)  Fifty,  &c.  v.  Howland,  5  Cush.  214. 
&u.  V  Kyle,  6  Gill,  343.  I 


(a)  Taking  a  distress  is  a  legal  demand  where  the  rent  is  reserved  in  money,  and  in  many 
cases  where  it  is  payable  in  kind;  but  not  in  a  case  where  tenants  had  contracted  to  pay 
rent  in  iron,  and  were  to  furnish  iron  drawn  according  to  order,  and  could  not  know  when, 
nor  how  much,  !ior  w^hat  size  of  iron  to  tender.    Hesler  v.  Pott,  3  Barr,  179. 

If  a  lease,  in  addition  to  the  reddendum'  and  a  covenant  to  pay  rent,  provide,  that  in  case 
there  is  no  sufficient  distress,  or  any  covenant  is  broken,  the  lessor  may  re-enter;  he  cannot 
thus  re-enter,  where  there  is  a  suffident  distress.  Van  Rensselaer  v.  Jewelt,  5  Denio,  121. 
See  4  Dane,  127. 

By  a  perpetual  lease  in  fee,  executed  in  1794,  reserving  an  annual  rent,  the  lessee  cove- 
nanted to  pay  the  rent  on  the  first  day  of  January  of  every  year,  and  it  was  provided,  that 
if  such  rent  remained  unpaid  for  twenty-eight  days,  the  lessor  miKht  prosecute  to  recover 
the  same,  or  collect  it  by  distress  and  sale  ;  and,  if  no  sufficient  distress  could  be  found,  or  if 
either  of  the  covenantsshould  not  be  performed,  then  it  should  be  lawful  for  the  lessor  to  re- 
enter. &c.  Held,  tiie  lease  did  not  make  distress  a  condition  precedent  to  re-entering,  nor 
was  there  an  implied  or  express  agreement,  that  the  lessor  should  not  re-enter,  if  there  waa 
sufficient  distress  upon  the  premises.     Van  Rensselaer  t;.  Snyder,  9  Bard.  302. 

{b  A  lease  contained  a  covenant,  in  the  usual  form,  bv  the  lessee,  to  pay  all  rates  or 
tax(-s.  and  a  proviso  for  re  entry  upon  a  breach.  Held,  non-payment  in  reasonable  time  of 
a  poor  rate,  duly  assessed,  allowed  and  publislied,  justified  a  re-entry,  without  showing 
previous  demand  or  notice.  Also,  if  the  covenant  was  to  pay  on  demand,  a  demand  on  the 
premises  oV  tlie  tenant's  son  was  sufficient.     Davis  v.  Burnell,  5  Eng.  L.  &  Kqu   417, 

Where,  in  a  lease  in  fee,  t.iere  was  a  reservation  of  rent,  among  other  things,  of  one 
day's  service  with  carriage  and  horses,  payable  at  a  particular  day  in  each  year;  held, 
no  demand  of  performance  was  necessary,  brforo  bringing  an  action  for  a  default.  [Whit- 
tlesey, J.,  dissenting]     Van  Rensselaer  v  Gallup,  5  Denio.  454. 

L  as"  conditioned  that  if  the  rent  shall  be  in  ^rrear,  or  upon  the  lessee's  failure  to  per- 
form and  ob.serve  atiy  covenant  in  the  lease,  tlie  lessor  may  at  any  time  while  the  default 
ContitU'8  re-enttr  and  repossess  the  premises  The  lease  also  contained  a  covenant,  that 
the  lessee  siiould  not  occupy  ilie  buildings  or  suffer  them  to  be  occupied  for  dwellings  or 
any  u  dawlul  purpose.  Held,  such  covenant  ran  with  the  laml.  and  bound  tiie  estate  in  the 
^ands  of  sub-tenauls,  and  an  unlawful  use  by  them  worked  a  forfeiture.     Wheeler  i;.  Earle, 

Cush  31. 


CHAP.  XVI.] 


UENT. 


243 


60.  In  the  creation  of  rent- charges,  it  is  usual  to  reserve  a  right  of 
entry,  by  way  of  use,  which,  as  incident  to  the  rent,  becomes  executed 
by  the  statute  of  uses,  as  a  legal  estate.  Thus,  lands  are  convoyed  to 
A,  to  the  use,  intent  and  purpose  that  B  may  receive  out  of  them  a 
certain  annual  sum  or  rent-charge;  and  to  the  further  use.  &c.,  that  if 
the  rent  be  in  arrear  for  a  certain  time,  B  or  his  assigns-^aiay' enter  and 
receive  the  profits  till  satisfied.  When  the  rent  becomes  in  arrear,  the 
use  springs  up  from  the  seizin  of  A,  and  ceases  with  the  payment. 
If  the  rent-charge  is  assigned,  the  right  of  entry  passes  along  with 
it.(l) 

61.  Tlie  common  law  imposes  very  strict  terms  u[K)n  a  lessor,  in  re- 
gard to  the  demanding  of  rent ;  requiring  that  it  be  done  upon  the 
land,  at  the  most  public  and  notorious  place,  such  as  the  front  door, 
or,  if  there  is  no  house,  at  the  gate  of  the  land,  and  before  sunset  of  the 
day  when  the  rent  falls  due,  that  the  money  may  be  counted.  In  New 
York,  it  is  said  these  rules  are  in  force,  unless  dispensed  with  in  certain 
eases  by  statute.  So  in  Ohio.  In  New  Hampshire,  it  has  been  ques- 
tioned whether  they  are  adopted  in  all  their  strictness;  but  late  cases 
decide,  that  the  demand  must  be  at  the  day  when  the  rent  falls  due, 
in  the  afternoon,  a  sufficient  time  before  sunset  to  allow  counting  of  the 
money,  and  upon  the  land.  In  New  Jersey,  they  are  held  inapplicable, 
where  the  tenant  denies  his  holding,  or  forbids  and  prepares  to  resist  a 
distr  ss ;  or  where,  by  the  condition  of  re-entry,  the  lessor  is  merely  to 
hold,  till  paid  from  the  profits.  The  condition  will  be  saved,  either  by 
a  tender  upon  the  land,  that  is,  a  readiness  to  make  a  tender,  or  a  per- 
sonal offer  to  the  lessor,  off  the  land.(2)(a) 


(1)  Gilb.  37. 

(2)  Jaeksou  v.  Kipp,  3  Wend.  230  ;  Goon 
V.  Brickett,  2  N.  H.  164;  Farley  v.  Craitr,  6 
Halst.  262;  3  Kent,  374;  1  Saun.  287.  ii.  16; 


Boyd  V.  Talbert,  12  Ohio,  212;  Sperry  «. 
Sperry,  S  N  II.  477  ;  De  Lancey  v.  Garnier. 
12  Barb.  12a. 


(a)  It  ha.s  been  held  in  Vermont,  that  where  a  rent  is  merely  tiominal,  as,  for  instance  an 
ear  of  corn  annually,  non-payment  is  no  ground  of  forfeiture.  People,  &c.  v.  Socy,  &c.,  Paine 
652.     So.  also,  that  a  tender  may  be  made  on  the  day  on  which  the  rent  falls  due,  at  a  late 
hour  in  the  evening.     Thomas  v.  Hayden,  (Windsor  Co.,  July  term,  1846,  cited  by  Kellogo 
J..)  19  Venn.  587.     The  strict  rule  as  to  a  demand  of  rent  lias  been  recognized   by  the  Su- 
preme Court  of  the  United  States.    Connor  v.  Bradley,  1  How.  211.     In  Maine,  a  lease  pro- 
vided, that  the  lessor  might  enter  and   without  process  or  notice  expel  the  tenant  if  he 
should  fail  to  pay  rent.     The  lessor  gave  notice  to  one  claiming  under  tiie  tenant   but  not 
on  the  land,  nor  when  any  rent  was  due,  tliat  he  should  look  to  him  for  tiie  rent      Held 
not  sufficient  to  terminate  the  lease.     Gage  v.  Smith,  2  Shepl.  466.     A  lease  provided  tiiat 
if  tiie  rent  siiould  be  unp:.id  for  a  year  after  it  should  become  due,  the  lessor  mio-jit  re-enter 
and  all  tiie  right  of  the  lessee  siiould  become  e.vtinL'uishcd.     The  rent  was  demanded  on  the 
day  preti.Ked,  but  was  not  paid.     In  tiie  course  of  tlie  year  the  arrears  of  rent  were  tendered 
to  tiie  lessor.     Held,  the  lease  was  not  forft-ited.     Jones  v.  Read,  15  N.  II.  68. 


serve 
cove 


re- 
tee 
Iso  a 


By  a  grant  made  in  1813,  a  yearly  rent  of  wheat,  hens,  and  one  day's  service  was 
^ved  to  the  grantor,  payable  on  the  Ist  day  of  February  in  eacii  year-  and  the'  "-ran 
^'enanted  to  pay  the  same  "at  the  times  and  in  the  manner  aforesaid  "  '  Then-  was  als. 
proviso,  that  if  the  rent  remained  unpaid  for  twenty-eight  days,  the  grantor  iniglit  prosecute 
or  distrain  for  such  rent:  and  a  funlR-r  proviso,  that  if  no  sufficient  distress  could  be  found, 
or  il  either  of  the  covenants  should  be  broken,  the  grantor,  iiis  heirs  &c,  mi'Wit  re-enter. 
Held,  the  grantor  had  a  right  to  re-enter  in  two  events:  1.  If  the  rent'romaincd  unpaid  for 
twenty-eight  days,  and  no  sufficient  distress  could  be  found;  and,  2  In  case  the  grantor 
demanded  the  rent  on  the  very  day  it  became  due,  at  a  convenient'  time  before  sun.set,  and 
at  tlie  particular  place  where  it  was  made  payable,  or,  if  no  place  was  specitied  in  the  lease 
then  at  the  most  notorious  place  on  the  premises  demised,  and  the  grantor  failed  to  pay  the 
same.  Held,  also,  that  a  demand  made  at  the  expiration  of  twenty-eiglit  days  from  the  day 
the  rent  became  duo  was  insufficient.     Van  Rensselaer  v.  Jewett,  2  Comst."l41. 


244 


RENT. 


[CHAP.  XVI. 


<">2.  An  action  of  debt  lies,  upon  a  lease  for  years,  for  rent.  And 
leases  usually  contain  a  covenant,  upon  which  the  action  of  covenant 
may  be  brouglit.  At  common  law,  debt  does  not  lie  lor  rent,  upon  a 
lease  for  life.  Otherwise,  b}^  St.  8  Anne,  c.  14.  Similar  acts  have  been 
pMSsed  in  New  York,  Delaware,  Virginia,  Kentucky,  Missouri  and 
Illinois.  In  Illinois,  in  case  of  a  lease  for  life,  and  an  occupation  with- 
out any  special  agreement  for  rent,  the  owner,  his  executors,  &c.,  may 
recover  the  rent,  or  a  fair  satisfaction  for  use  and  occupation,  in  debt  or 
assnmpsit.{V) 

63.  In  addition  to  the  remedies  above  named,  tbere  is  the  action  of 
deht{d)  or  assumpsit  for  use  and  occupation^  where  the  letting  is  not  by 
deed.  This  action  is  specially  provided  in  New  York,  New  Jersey, 
Delaware,  Indiana,  A]-kansas  and  Missouri  ;(i)  and  any  unsealed  agree- 
ment for  a  certain  rent  may  be  used  as  evidence  of  the  amount  to  be 
recovered.  In  Alabama,  this  action  lies,  by  statute,  even  upon  a  lease 
by  deed,  if  no  certain  rent  is  agieed  upon.  But  in  Mas^-^achusetts  it  is 
held,  that  assunipsit  will  not  lie  in  case  of  a  sealed  lease,  even  upon  an 
express  parol  promise  to  pay  the  rent;  in  Pennsjdvania,  that  it  will 
not  lie  against  the  assignee  of  a  sealed  lease;  in  Maine,  upon  any 
written  lease.(&)  Nor  will  it  lie  where  the  tenant  entered  as  a  trespa.^iser. 
And  though  assumpsit  lies  for  rent,  yet,  as  it  issues  from  the  realty, 
a  bond  yiven  for  rent,  reserved  merely  by  parol,  is  no  extinguishment 
ofit.(2Xc) 


(1)  Co.  Lit.  47  a,  n,  4;  1  N.  Y.  Rev.  St. 
747;  1  N.  J.St.  186;  1  Yir.  Hev.  C.  155; 
2  Ky.  Rev.  L.  1354:  Illiii.  Rev.  L.  675; 
Misso.  St  376;   Dela.  Rev.   Sls   421. 

(2)  1  N.  Y.  Rev.  St.  748  ;  1  N.  J.  St.  187  ; 
Ind.  Rev.  L.  424;  Ark.  Rev.  St.  520;  Misso. 
St.  377;  Dela.  St.  1829,  365;  Grant  v.  Gill, 
2  Whart.  42;  Gunii  v.  Seuvil.  4  Day,  228; 
Aik.  Dijr.  357  ;  Cocliiian  v.  Jenkins.  14  Mass. 
93;  St'K-kett  w.  Watkins,  2  Gill  &  J.  326; 
Cornell  V.   Lamb,   20    John.    407;    Lloyd  v. 


Hough,  1  How.  153;  Gage  v.  Smith,  2  Shepl. 
466;  Blume  V.  M'Clurker,  10  Watts,  380. 
See  Marseilles  v.  Kerr,  6  Whart.  500 ;  Scott 
1).  Hawsman,  2  McL.  180;  Bailey  v.  Camp- 
hell,  1  Scam.  112;  Whitney  v.  Cochran,  lb. 
210;  Ballentine  v  M'Dowell,  2,  28;  Stephens 
V.  Lynn,  8  Carr.  &  P.  389;  Green  v.  London, 
&e.  9,  6;  Drury,  &c.  v.  Chapman,  1  Carr.  & 
K.  14 ;  Gibson  v.  Kirk,  1  Ad.  &  El.  N.  S. 
850. 


(a)  Where  ic  is  proviiieil,  that  the  rent,  if  not  paid  at  the  appointed  time,  is  to  be  re- 
covered in  an  action  of  debt,  no  tbrfeiture  can  be  claimed  for  nonpayment.  De  Lancey  v. 
GaNun,  12  Barb.  128. 

{b)  It  is  said  to  have  been  long:  in  )ise  in  Yiro;inia.  Lloyd  v.  Hough,  1  How.  153.  In 
Delaware,  it  lies  against  one  who  entered  under  a  contract  to  purchase.  Rev.  Sts.  ch. 
120  In  Maine,  though  the  rent  is  reservedly  detd.  Scs.  1853,35.  See  Piudergast  v. 
Young,  1  Fu,<t.  (N.  H )  234 

(c)  So,  the  tVj^UX,  ot  distrtss  is  not  extinguished,  by  taking  a  bond  and  warrant  of  attornc}- 
f"r  the  rent,  at  the  time  of  givini;  the  lease,  as  collateral  security.  It  would  be  otherwise 
with  a  ju'l^inienl  upun  the  ;)jireem'-nt  to  pay  rent.  But  if  A  and  B  hire  by  parol  from  C,  a 
bond  Irom  A  .done  tor  the  whole  rent  discharges  B.  Howell  v.  Webb,  2  Pike,  360.  An 
action  for  u.se  and  oci-upHtion  inny  be  maintained,  though  the  tenant  has  quit  the  premises, 
if  his  coniracl  still  remains  in  tbrce.  Westlake  ?;.  De  (3 rave,  25  Wend.  669.  So,  without 
actual  occupancy  Stier  v  Surifet,  10  S.  &  M  154.  See  Gilholey  v.  Washington,  4  Comst. 
217.  It  does  not  lie  without  a  contract,  express  or  implied.  De  Young  v.  Buchanan.  10 
Gill  &  J  149.  As  where  the  tenant  considered  the  property  liis  own.  Joimson  v.  Beau- 
champ,  9  Dana,  128.  A  demise  nujst  tie  sliown,  or  evidence  offered  of  a  tenancy.  Ward 
V  Bull,  1  Branch,  271  If.  under  color  of  a  void  sealed  instrument,  a  party  occupies  with 
the  assent  of  the  owner,  an  action  for  use  and  occupation  will  lie;  if  without  such 
jK.sent,  an  action  of  trespn.ss  .^nder-'on  v  Oitcher  11  Gill  &  J.  450.  The  action  lor  u.se, 
&c.,  lies,  where  oiie  has  oceu;)ioil  tinder  a  contract  of  sale,  which  has  been  rescinded, 
Howard  V.  Shaw,  8  Mees.  &  W.  118.  Not  where  the  possession  is  tortious  Lloyd  v. 
Hough,   1   llow.  153.     N(ir  fur  the  use  of  premises  sold  at  execution  or  a  trust  sale,  from 


CHAP.  XVr.]  RKNT.  2-45 

64.  A,  an  executor,  leases  land  of  the  deceased  by  parol,  for  cue 
year.  The  will  was  afterwards  set  aside,  and  the  plaintiff,  an  heir, 
having  been  appointed  administrator,  brings  assumpsit  against  the 
lessee  for  rent.  Held,  the  aetion  would  not  lie;  for  if  A  was  author- 
izt'd  b}^  the  will  to  lease,  the  contract  was  with  him  individually,  and 
either  h.;  or  his  representative  must  enforce  it;  if  nrjt ^authorized,  the 
lessee  had  made  no  contract  with  the  j)laii)till',  but,  as  lo  him,  was  a 
trespasser.(l) 

6.).  Although  a  lessor  may  at  his  election  sue  or  distrain  for  rent,  or 
enter  f(jr  non-payment  of  it  by  virtue  of  the  eonditiun,  yet  he  cannot 
do  both,  and  the  bringing  of  a  suit  or  making  a  distress  will  be  held  a 
waiver  of  the  condition,  because  it  affirmeih  the  rent  to  have  a  continu- 
ance. But,  it  is  said,  he  may  receive  the  rent  and  acquit  the  same, 
and  yet  enter  for  condition  broken.  But  if  he  accept  a  rent  due  at  a 
day  after,  he  shall  not  enter,  (for  the  prior  breach,)  because  the  acquit- 
tance for  this  raises  a  presumption  that  all  other  instalments  have 
been  paid.  Kecovery  upon  a  covenant  for  rent  is  no  bar  to  a  subse- 
quent distress.(2) 

(1)  Boyd  V.  Sloan,  2  Bai.  311.  See  Brown-  [  Sheldon,  5  Cow.  448 ;  Newman  i'.  Rutter,  8 
ino;  V.  Haskell,  22  Pick.  310:  1  How.  152  ;  i  Watts,  51  :  Priudle  v.  Anderson,  19  Wend. 
Picket  r.  Breekenridge,  lb.  297.  j  391. 

(2)  Co.   Lit.    211    b,    373  a;    Jackson  vA 

the  time  of  the  sale  till  the  redemption  of  the  estate;  except  on  contract  between  the 
pjirties  for  rent.  The  only  remedy  is  by  ejectment,  and  an  action  for  mesne  profits.  O'Don- 
nell  V.  McMurdic,  G  Humph.  134.  Proof  of  occupation  by  tiie  defendant  of  the  premises 
duriiijr  the  time  declared  for,  his  acknowledirment  of  the  lease,  and  an  offer  by  him.  ou  a 
cerl:iiri  discount  being  made  by  the  plaintiff,  to  have  judgment  entered  for  tlio  balance, 
will  support  the  action.     O'Connori;.  Tynes,  3  Rich.  276. 

A  leased  premises  to  B  for  a  year.  Before  the  end  of  the  year,  A,  with  the  consent  of 
B,  leased  the  same  to  0  for  the  year  following,  and  C  rented  a  part  of  the  same  to  B, 
who  occupied  a  part  of  the  year,  and  abandoned  the  premises.  Held,  B  was  liable  to  C 
for  use  and  occupation  of  the  portion  rented  by  him,  and,  as  he  hired  for  no  specific 
time.  C  might  sue  for  such  rent  before  the  end  of  the  year.  Cooke  v.  Norriss.  7  Ired.  213. 
Whether  the  right  to  recover  for  use  and  occupation,  given  in  New  York  by  1  Rev.  Sts. 
748,  sec.  26,  ia  not  limited  to  the  period  of  actual  oceup;incy,  qucere.  Cleves  v  Willouo-h- 
by,  7  Hill,  83  ■  o 

Upon  the  ground  that  a.ssump.sit  for  use  and  occupation  will  not  lie,  where  the  defendant 
has  neither  occupied  nor  held  the  premises  during  liio  time  for  which  the  recovery  is 
sought;  where  the  plaintiff  demi.sed  to  the  defendant  certain  premises  for  a  term,  which  the 
latter  abandoned  after  occupying  for  a  lime,  and  the  plaintiff  gave  the  defendant  notice  that 
he  should  let  them  for  the  best  terms  he  could,  and  hold  him  responsible  for  any  de- 
ficiency, and  then  leased  to  another,  who  occupied  for  the  remainder  of  the  term,  but 
became  bankrupt  and  failed  to  pay ;  held,  the  action  would  not  lie  against  the  defendant, 
for  the  time  during  which  such  other  person  occupied.     Beach  v.  Gray,  2  Denio,  84. 

A  lessor  may  maintain  "debt  for  u.se  and  occupation"  against  the  assignee  of  his  lessee, 
under  a  demise  by  writing  not  under  seal.  McKeon  v.  Whitney,  3  Denio,  452;  Moffatt  v. 
Smith,  4  Comst.  126. 

So,  it  seems,  a  landlord  may  recover  upon  an  imimul  computassent,  though  tlie  evidence 
be  of  an  accounting  concerning  rent  secured  by  deed.     Cartledge  v.  \Vest,'"2  Denio,  377. 

But.  where  the  tenant  is  a.ssi.'uee  of  the  lessee,  under  an  a.ssigament  for  benefit  of 
creditors,  and  the  promi.se,  upon  the  accounting,  was  to  pay  the  rent  when  the  defendant 
should  receive  funda  from  tiie  assigned  property ;  there  must  be  proof  that  he  has  received 
such  funds,     lb. 

The  common  count  in  debt  for  use  and  occupation  ia  good;  and,  in  such  count,  it  ia 
not  necessary  to  allege  the  character  in  which  the  plaintiff  sues,  wiielher  as  assignee  of 
the  reversion,  or  otherwise.     Armstrong  v  Clark,  17  Oliio,  495. 

lu  an  action  of  debt  for  use  and  occupation,  a  plea  that  the  plaintiff  is  grantee  of  the 
reversion,  and  that  before  any  part  of  the  rent  had  accrued,  tlie  defendant,  by  deed, 
assigned  the  premises  to  A,  and  put  him  in  possession,  is  bad  on  demurrer,  aa  amounting 
to  the  general  issue.     lb. 


246  RENT.  [CHAP.  XYl. 

66.  It  is  said  that,  though  the  lessor  receive  part  of  the  rent,  he  may 
re-enter  for  the  residue.(l)(a) 

67.  Statute  4  Geo.  II.  provided,  that  a  lessee  should  have  restoration 
of  his  land,  on  paying  the  rent,  &c.,  in  six  months  from  judgment  against 
him  ;  or,  if  he  paid  before  judgment,  that  the  proceedings  should  be 
stayed. (2)  (See  p.  241,  n.  a.)  It  is  said,  in  New  Hampshire,  though 
this  statute  is  not  expressly  adopted,  the  principle  of  it  is  in  force.(3) 

68.  In  lilinois,  Missouri,  New  York  and  New  Jersey,  where  a  half 
year's  rent  is  due,  and  there  is  a  right  of  re-entry,  an  ejectment  may  be 
brought  without  demand  ;  and,  if  execution  be  levied  before  the  arrears 
and  costs  are  paid,  the  lease  is  avoided,  unless  the  judgment  be  reversed 
for  error,  or  the  tenant,  or,  in  New  York,  any  party  interested,  obtain 
relief  in  Chancery,  by  a  bill  filed  in  six  months  from  judgment.  But  he 
may  stay  the  suit  by  a  tender,  before  final  judgment.  In  Missouri,  New 
Jersey  and  New  York,  a  mortgagee  of  the  lease,  not  in  possession,  may 
avoid  the  judgment  within  six  months,  by  paying  the  rent,  costs  and 
charges,  and  performing  the  agreements  of  the  lessee.  Substantially  the 
same  provisions  are  made  in  Arkansas.  In  New  York,  the  landlord  shall 
account,  on  settlement,  for  all  that  he  has  made  from  the  land,  or  might 
have  made  but  for  his  wilful  default.(4)  In  Kentucky  and  Delaware,(5) 
the  law  so  far  favors  the  claim  of  rent,  that  a  landlord,  upon  making 
oath  that  his  tenant  is  likely  to  leave  the  county  before  rent  day,  may 
have  a  process  of  attachment  before  the  rent  is  due. 

69.  In  some  cases.  Chancery  will  lend  its  aid  for  the  recovery  of 
rent ;  but  only  where  there  is  no  effectual  remedy  at  law.(i)  Nor  will 
it  change  the  nature  of  the  rent,  so  as  to  create  a  liability,  unless  there 
is  fraud  in  preventing  a  distress. 

(1)  Tb.  n.  1.  I  676  ;   Misso.   St.  377;    1  N.  J.  R.  C.  189-90  ; 

(2)  See   Pennant's  case,   3   Rop.   64,  65  ;  |  Ark.  Rev.  St.  520. 

Noy,  7.  (5)  2  Kv.  Rev.  L.    1353  ;  Del.  St.    1829, 

(3)  Coon  V.  Brickett,  2  N.  H.  163.  365-6. 

(4)  2  N.  Y.  Rev.  St.  505-7  ;  lUin.  Rev.  L.  I 

(a)  See  supra,  ch.  15,  sec.  66.  In  New  Hampshire,  a  condition  of  re-entry  is  waived, 
even  after  entry,  by  acceptance  of  tlie  rent  in  arrear  wlien  tlie  entry  was  made.  Coon 
V.  Brickett,  2  N.  H.  163.  Otherwise  in  New  York,  unless  tiie  rent  not  only  was  received, 
but  accrued,  after  (brfeiture.  3  Cow.  230.  In  this  State,  the  distinction  lias  been  taken, 
that  where  the  tenant  does  an  act,  or  is  chargeable  with  an  omission,  which  authorizes  the 
landlord  to  reenter  merely,  any  affirmation  by  the  latter  will  revive  the  lease ;  but  it  is 
otherwise  wliere  the  lease  lias  become  absolutely  void.  Smith  v.  Saratoga,  &c.,  3  Hill,  508. 
The  receipt  of  rent  accruing  after  forfeiture  is  a  waiver.  After  a  re-entry,  an  action  lies 
for  rent  accruing  before  forfeiture.  But  for  subsequent  rent,  an  action  for  mesne  profits  is 
the  remedy.  Where  a  lease  reserves  the  right  of  re-entry,  the  lessor  to  have  the  land  "as 
if  the  indenture  had  never  been  made;"  held,  covenant  would  still  lie  for  the  rent  accrued 
before  entry.     Hartshorne  «.  Watson,  4  Bing.  N.   178.     See  Doe  v.  Rees,  lb.  384. 

[b)  Where  trustees,  by  authority  of  an  net  of  assembly,  sold  and  conveyed  land,  reserving 
in  the  deed  a  ground-rent,  to  be  paid  to  the  proprietor  of  the  land,  when  he  should  be  as- 
certained, and  the  proprietor  of  tlie  land  afterwards  filed  a  bill  against  tlie  purchaser  to  re- 
cover the  ground-rents;  and  the  answer  showed  that  tliey  were  unpaid;  held,  the  statute 
of  limitations  was  no  bar.     Mulliday  v.  Maeliir,  4  Gratt.  1. 

A  bill  in  equity  to  recover  rent,  brought  by  an  assignee  of  a  lessor  against  two  separate 
grantees  of  different  portions  of  the  premises,  conveyed  to  them  by  the  lessor,  to  whom 
the  rights  of  the  lessee  had  been  assigned:  is  multifarious.     Ciiilds  v.  Clark,  3  Barb.  Ch.  52. 

A  lessee  cannot  maintain  a  bill,  to  compel  his  lessor  and  a  claimant  of  the  premises  to  liti- 
gate their  rights  to  the  rent,  where  the  evidence  tends  strongly  to  show  that  the  lessee  ib- 
tained  possession  by  collusion  with  the  claimant,  and  for  his  benefit,  in  order  to  prejudice 
the  lessor.     Williams  v.  Halbert,  7  B.  Mon.  184. 

In  such  case,  the  claimant  cannot  maintain  a  cross  bill,  to  try  a  purely  legal  right  to  the 
premises.     lb. 


CHAP.  XVI.] 


RKNT. 


247 


70.  Lease  iu  perpetuity,  with  a  conditiou  and  covenant,  tint  upon 
every  sale  the  lessor's  consent  should  be  obtained,  with  the  right  of 
pre-emption  to  him  ;  and,  il  afterwards  sold  to  another,  that  one-tenth 
of  the  price  should  be  paid  to  the  lessor.  A  sale  having  taken  })hace, 
and  the  purchaser  having  entered  ;  held,  the  lessor  had  a  claim  at  law 
for  one-tenth  of  the  price;  and,  as  the  transaction  was^a^  restraint  and 
fine  upon  alienation.  Chancery  would  not  interfere  for  his  relief  (1) 

71.  Pending  a  suit  against  the  tenant  to  enforce  forfeiture  of  the 
lease,  the  landlord  cannot  maintain  a  bill  in  equity,  as  upon  a  subsist- 
ing lease.(2) 

72.  With  regard  to  the  estates  which  may  be  had  in  a  rent,  they  are, 
in  general,  the  same  with  the  estates  in  land  already  described.  Thus, 
a  man  may  be  tenant  in  fee,  in  tail,  for  life  or  for  years,  of  a  rent- 
charge.  A  rent-service,  being  incident  or  annexed  to  the  land  itself  or 
the  reversion  therein,  is  of  course  subject  to  the  same  liniitations  and 
dispositions  as  the  reversion  ;  and  a  rent-charge,  though  not  thus  inci- 
dent, may  be  held  in  the  same  ways  as  the  lands  themselves. 

78.  In  some  cases,  where  a  peculiar  form  of  reservation  has  been 
adopted,  the  question  has  arisen,  whether  the  rent  should  be  a  fee-sim- 
ple or  only  a  chattel  interest.  Thus,  where  rent  was  reserved  to  the 
lessor,  his  lieirs  and  assigns  ;  one  sum  for  a  certain  number  of  years, 
then  a  larger  sum  for  another  term  of  years,  and  anew  valuation  to  be 
afterwards  made  at  the  end  of  successive  long  terms,  and  the  rent  fixed 
accordingly,  to  he  paid  forever  ;  held,  this  last  clause  imported  that  the 
rent  first  fixed  should  be  perpetual,  being  subject  to  increase,  but  not 
to  diminution  ;  and  that  the  rent  was  a  fee-simple,  not  a  succession  of 
chattel  interests,  passing  to  executors.(8) 

74.  In  case  of  an  estate  pour  autre  vie  in  a  rent,  there  could  be 
no  general  occupancy  after  the  owner's  death,  living  the  cestui  que  vie  ; 
because,  from  the  nature  of  things,  no  entry  could  be  made  upon  it,  and 
the  terms  of  the  grant  made  no  provision  for  such  occupanc}'.  Hence,  at 
the  death  of  the  tenant  for  life,  the  rent  terminated.  But  if  the  rent 
is  limited  to  one  and  Ids  heirs,  for  his  life  and  the  lives  of  others,  his 
heirs  shall  hold  upon  his  death,  as  special  occupants,  by  nomination 
and  by  descent.  So,  if  the  limitation  is  to  executors,  it  seems  to  he 
now  settled,  although  anciently  doubted,  that  the  executors  may  take 
as  special  occupants.  And  it  is  presumed  that  the  same  rules  upon 
this  subject  apply  to  rents,  which  have  already  been  stated  in  regard 
to  lands  themselves.(4)     (See  ch.  4.) 

75.  Rents  are  subject  to  curtesy.  And  seizin  in  law  is  sufficient  to 
give  curtesy  in  a  rent-charge,  being  often  the  only  possible  seizin. 
And,  it  seems,  there  shall  be  curtesy,  even  though  the  rent  were 
granted  to  the  wife,  the  first  payment  to  be  made  at  a  future  time, 
which  did  not  arrive  before  her  death;  because  the  grant  was  imme- 
diate, though  the  payment  was  future.(5.)  If  a  woman  makes  a  gift  in 
tail,  reserving  rent  to  her  and  her  heirs,  marries  and  has  issue,  and  the 


(1)  3  Cruise,  199;  Livingston  v.  Stickles,  8 
Paige,  398.  See  Prestons  v.  McCall,  7  Gratt. 
121. 

(2)  Sluy  vesant  v.  Davis.  9  Paipe,  427. 

(3)  Farlej'  v.  Craig,  6  TIalst.  2G2. 

(4)  Salter  v.  Boteler,  Vaugh.  199;  Smar- 


lle    V.   Penhallow,  1    Salk.  189:    Bowles  v. 
Poore,  I  ro.  Jac.  282;  Low  v    Burroii,  3  P 
Wms.  264,  and  ii. ;   Bulier  v    Cheverton,    2 
Rolle  Abr.  152.     Supra,  ch.  4. 
(5)  Co.  Lit.  29  a. 


248 


RENT. 


[CHAP.  XVI. 


donee  dies  without  issue,  aud  then  the  wife  dies  ;  the  husband  shall  not 
have  curtesy  in  the  rent,  because  it  has  terminated  by  act  of  God,  and 
no  estate  in  it  remains.  But  if  a  man  be  seized  in  fee  of  a  rent,  and 
make  a  gift  in  tail  general  to  a  woman,  who  marries  and  has  issue,  and 
the  issue  die,  and  the  wife  die  without  issue,  the  husband  shall  be 
tenant  by  the  curtesy  of  the  rent,  because  it  remains.(l)(a) 

76.  Eents  are  subject  to  dower,  as  has  been  already  stated,  (ch,  8,)  in 
reference  to  a  rent-service.  A  rent-charge  is  also  subject  to  dower. 
But  a  personal  annuity  is  not.  And  if  a  widow  sue  the  heir  for  her 
dower  in  a  rent-charge,  he  cannot  defend,  upon  the  ground  that  he 
claims  the  provision  to  an  annuity,  since  he  can  so  elect  only  by  bring- 
ing a  writ  of  anriuity.{2)  In  regard  to  dower,  however,  as  well  as  cur- 
tesy, a  distinction  is  made  between  a  rent-charge  de  novo^  and  one 
already  in  esse^  in  which  an  estate  of  inheritance  is  created. (3) 

77.  Thus,  where  a  rent  de  novo  is  granted  to  a  man  and  the  heirs  of 
his  body,  and  he  dies  vvithout  issue,  his  widow  shall  not  be  endowed — 
the  rent  being  absolutely  determined  by  his  death.  It  is  otherwise, 
where  a  remainder  is  limited  upon  the  estate  tail.  In  such  case,  for  the 
purpose  of  dower,  the  rent  shall  continue  against  the  remainder-man. 

78.  And  if  a  rent  already  in  esse  be  entailed,  the  widow^  shall  be  en- 
dowed, though  the  husband  die  without  issue. 

79.  A  remainder  in  a  rent-charge  may  be  limited  upon  a. life-estate, 
or  upon  an  estate  tail,  even  though  the  rent  be  created  "  de  novo  ;"  and, 
therefore,  without  the  remainder,  there  would  be  no  reversion  m  the 
gran  tor.  (4) 

80.  A  rent  de  novo  may  be  created  in  futuro :  because  such  grant  of 
a  new  right  has  not  the  effect  of  putting  a  precedent  estate  in  abey- 
ance, which,  it  has  been  seen,  is  against  the  policy  of  the  law.  But  a 
rent  in  esse  is  subject  to  the  same  rule  in  this  respect  with  the  land 
itself,  because  there  was  a  precedent  estate  in  it ;  and  such  grant, 
dividing  the  title,  produces  an  uncertainty  as  to  the  legal  owner.(5) 

81.  A  rent  de  novo  may  be  limited  to  cease  for  a  time,  and  then 
revive.  Thus  it  may  be  limited  to  one  and  his  heirs,  and,  if  the  grantee 
die  leaving  a  minor  heir,  the  rent  to  cease  during  his  minority.  In 
such  case,  if  the  widow  sue  the  tenant  for  dower,  she  shall  have  execu- 
tion when  the  heir  comes  of  age.(6) 

82.  So  a  rent  may  cease  for  a  time,  for  reasons  independent  of  the 
original  limitation,  and  afterwards  revive,  when  those  reasons  cease  to 
exist. 

88.  Lands,  leased  by  trustees,  were  by  an  act  of  the  legislature  con- 
firmed in  fee  to  the  tenants,  they  paying  a  certain  rent  to  the  trustees, 
and  all  taxes  upon  the  value  of  the  land  over  and  above  the  rent.  By 
a  subsequent  act,  the  lands  were  taxed  like  other  lands,  and  the  legis- 
lature assumed  the  payment  of  the  rent  to  the  trustees.  Afterwards, 
the  lands  ceased  to  be  taxed.     Held,  the  rent,  originally  payable  by 


(1)  Co.  Lit.  30  a. 

(2)  Co.  Lit.  32  a;   lb.  144  h. 

(3)  Chaplin  v.  Cliapliti,  3  P.  Wms.  229. 

(4)  3  Cruise,  203. 


(5)  Gilb.  60. 

(6)  Fitz.  Abr.  Dower,   143 ;  Jenli.  Cent.  1, 
ca.  6. 


(a)  So  if  a  rent  de  novo  be  granted  in  tail,  and  cease  with  failure  of  issue,  it  is  still  subject 
to  curtesy.     Co.  Lit.  30  a,  n.  2. 


CHAP.  XVIL]         RENT— DISCIIARGR  AND  APl'OUTIONMKNT.  249 

the  tenants  to  the  trustees,  revived  ;  that  the  true  construction  of  the 
latter  net  was,  that  the  rents  should  be  paid  from  the  taxes,  only  while 
such  taxes  were  laid;  that  the  rents  could  not  be  discharged  without 
the  assent  of  the  trustees,  and  their  acquiescence  in  receiving  them  from 
the  government  was  only  an  adoption  of  that  mode  of  payment,  not  a 
waiver  of  any  payment.(l)  ,- 

84.  The  statute  of  uses  is  applicable  to  rents.  Thus,  if  a  rent  charge 
be  limited  to  A  in  trust  for  B,  the  statute  executes  the  use  in  B,  And 
if  there  be  also  a  clause  of  distress,  and  a  covenant  to  pay  the  rent  to 
A  to  the  use  of  B,  the  right  of  distress  will  vest  in  B,  as  incident  to 
the  rent;  but  the  covenant  will  not,  being  merely  collateral. (2) 

8o.  But  a  use  upon  a  use,  in  rents  as  well  as  lands,  is  not  executed 
by  the  statute.  Thus,  where  one  conveyed  lands,  to  the  use  and  intent 
that  certain  trustees  should  have  a  rent-charge  in  fee,  and  then  the  rent 
to  be  to  the  use  of  A  in  tail-male,  remainder  over;  held,  the  widow  of 
the  issue  of  A  was  not  dowable,  he  having  only  a  trust.(3) 

8H.  Where  a  person  is  once  seized  of  a  rent,  he  cannot  lose  his  right 
merely  by  non-user  or  failure  to  receive  it,  or  even  by  an  adverse  claim 
and  receipt  of  it  by  another  man,  and  an  attornment  to  him.  Rent 
being  a  mere  creature  of  the  law  and  collateral  to  the  land,  the  right 
always  carries  with  it  the  possession.  The  maxim  is  ^'' nemo  rcdditam 
alterius,  invito  domino,  percipere  aut  possidere  potest^  The  owner  of  a 
rent  may,  however,  consider  himself  disseized,  and  bring  an  action  ac- 
cordingl}-,  at  his  election,  for  the  purpose  of  more  speedy  and  effectual 
redress.(4) 

87.  A  rent  is  not  forfeited  by  an  attempt  to  convey  a  greater  interest 
in  it  than  the  owner  possesses,  because  he  can  pass  only  his  own 
title.(5) 


CHAPTER  XVII. 

RENT— DISCHARGE  AND  APPORTIONMENT. 


1.  General  rule — no  apportionment  as  to 

time. 
3.  Eviction  by  landlord  or  tliird  persons ; 

from   the  whole  or  a  part  of  the 


partial  :    loss    by   fire  ;    debt   and 
covenant. 
26.  Purchase  of  the   land   by  landlord — 
efl'ect  upon  a  rent  service. 


premises.  27.  Apportionment  by  transfer  of  the  land. 

!_^T__  ^g    Lease  bj'  tenant  for  life. 

33.  Rent-charpe — when  extinguished  and 

when  not. 
37.  When  api)ortioned. 


6.  Wliat  is  an  eviction 
12.   What  is  not  an  eviction. 
16.  Loss   by  act  of  God,   &c. — total   or 


1.  Rent-service  being  n  retribution  for  the  use  of  land,  the  general 
principle  is,  that,  if  by  any  means  the  tenant  is  deprived  of  the  land, 
as  by  quitting  or  assigning  the  premises,  with  the  lessor's  consent,  or 

(1)  Adams  1'.  Buoklin,  7  Pick.  121.  ;  Co.  Lit.   323   b;    Gilb.  Ten.  104;  Lit.  588- 

(2)  Cook  V.  Herle.  2  Mod.  138.  9,  237.  240. 

(3)  Chaplin  v.  Chaplin,  3  P.  Wms.  229.  (5)    Co.  Lit.  251  b. 

(4)  Edward  Seymor's  case,  10  Rep.  97  a ; 


250 


RENT— DISCHARGE 


[CHAP.  xvn. 


by  eviction  under  a  paramount  title ;  his  obligation  to  pay  rent  ceases.(a) 
Eviction  will  not  discharge  the  liability  for  rent  previously  due, 
even  though  payable  in  advance,  and  though,  before  the  quarter  for 
which  it  was  payable  in  advance  expires,  a  mortgage  on  the  estate  is 
foreclosed,  a  sale  made,  and  the  tenant  attorns  to  the  purchaser.  But 
it  has  been  doubted,  whether  rent  could  be  recovered  in  such  case  for 
a  period  subsequent  to  eviction.  If  eviction  take  place  at  any  time 
before  the  appointed  day  of  payment,  there  will  be  no  apportionment, 
but  the  whole  rent  will  be  discharged. (1)  It  has  been  intimated  that, 
if  the  lessee  has  derived  a  substantial  benefit  from  the  use  of  the  estate 
for  a  part  of  the  term,  he  may  be  liable  on  a  quantum  meruit.  The 
case  is  compared  to  that  of  a  charter-party,  where  the  whole  contract  of 
atfreightmeut  is  not  fulfilled,  but  the  goods  have  been  carried  to  an 
intermediate  port.(2) 

2.  Where  a  lessee  covenants  to  pay  rent  in  advance,  it  may  be  paid 
at  any  time  during  the  day  on  which  it  is  payable,  and,  if  evicted  by 
paramount  title  on  that  day,  he  is  discharged.(3) 

3.  Eviction  may  be  effected,  either  by  the  landlord  himself  without 
title,  or  by  a  third  person  under  a  paramount  title.  And,  where  it 
applies  to  the  ivhole  land,  an  eviction  in  either  of  these  modes  has  the 
same  effect  of  discharging  the  rent.  But  where  the  tenant  is  evicted 
from  only  a  part  of  the  land — if  by  a  stranger,  the  rent  shall  be  appor- 
tioned— if  by  the  lessor  himself,  the  whole  will  be  discharged(4)(fe) 


(1)  Gilb.  145;  Wood  v.  Partridge,  11 
Mass.  493;  M'Elderry  u.  Flannagan,  1  Har. 
&  G.  308;  Giles  v.  Comslock.  4  Conist.  270. 
See  Bordman  v.  Osborii,  23  Pick.  295  ;  also 
ante,  ch.  15,  sec.  72. 


(2)  Fitchburg:,  &c.  v.  Melven,  15  Mass.  270. 

(3)  Smith  V.  Shepard,  15  Pick.  147. 

(4)  3  Kent,  376  ;  Dyett  v.  Pendleton,  8 
Cow  727  ;  Co.  Lit  14S  b ;  Lewis  v.  Payn,  4 
\Yend.  423  ;  Zule  v.  Zule,  24  Wend.  76. 


(a)  It  has  been  held,  that  no  action  can  be  maintained  upon  the  covenant  to  pay  rent, 
unless  the  defendant  was  lot  into  full  possession  of  the  premises.  Holgate  v.  Kay,  1  Carr. 
&  K.  341. 

But.  in  covenant  for  rent  against  an  assignee  of  the  lessee,  he  cannot  show,  under  a  plea 
denying  that  tlie  lease  is  the  deed  of  the  lessee,  that  the  premises,  at  the  date  of  the  lease 
and  assignment,  were  possessed  adversely  to  the  lessor;  it  being  conceded  that  there  was 
no  title  paramount  to  the  plaintiff's.  Nor  can  he  offer  such  proof,  under  a  plea  that  the 
lessee's  title  did  not  pass  to  him,  as  alleged.  University,  &c.  v.  Joslyn,  21  Verm.  52.  If  the 
defendant  has  been  excluded  by  adverse  possession,  existing  at  the  time  of  ilie  demise,  and 
continuing  afterwards,  he  must  plead  it  specially.  lb.  A  plea,  alleging  that,  prior  to  the 
execution  of  the  lease,  certain  persons  entered  and  expelled  the  plaintiff,  and  continued 
their  possession  to  the  day  of  the  demise,  and  then  occupied  adversely  ;  but  not  alleging  tlie 
eviction  to  be  under  a  paramount  title,  or  that  the  defendant,  or  any  one  under  whom  he 
claims,  is  connected  with  the  adverse  title  ;  is  bad      lb. 

In  an  action  for  use  and  occupation,  eviction  before  the  rent  fell  due  is  a  good  defence 
under  the  general  issue.     Prentice  v.  Elliott,  5  Mees.  &  W.  G06. 

In  covenant  for  rent,  the  plea  of  eviction  by  title  paramount  must  allege,  that  it  was  by 
title  existing  before  the  demise,  and  that  there  was  an  actual  entry  by  the  evictor.  Kaglee 
V.  Ingersoll,  7  Barr,  185. 

{b)  So,  where  an  absolute  purchaser  of  land  is  evicted  from  only  a  part  of  it,  this  is  no 
ground  for  rescinding  tlie  whole  contract.     Simpson  v.  Hawkins,  1  Dana,  305. 

One  who,  by  frau'lulent  representations,  is  induced  to  become  a  lessee  of  an  entire  lot,  of 
which  the  lessor  only  owned  a  part,  may,  after  the  discovery  of  the  fraud,  enter  into  pos- 
session, and  occupy  during  the  term,  and,  in  an  action  by  the  lessor  lor  the  rent,  may  recoup 
the  damages  he  has  sustained  by  means  of  the  fraud.     Whitney  v.  .\llaire,  4  Denio,  554. 

It  has  been  held  in  England,  that  to  an  action  against  a  lessee  upon  his  covenants  to 
repair,  not  to  assign,  or  commit  vvaste,  it  is  not  a  good  plea,  that  the  lessor  allowed  a  stran- 
ger to  enter  upon,  and  eject  the  tenant  from,  a  part  of  the  premises.  Newton  v.  Allin,  I 
Ad.  &  El.  (N.  S.)  518. 

The  landlord  cannot  distrain  for  rent,  where  the  tenant  is  kept  out  of  one  room  in  the 
building  leased  by  a  prior  lessee,  although  the  tenant  has  occupied  during  the  whole  term. 
French  v.  Lawrence,  7  Hill,  519. 


CHAP.  XVII.J 


AND  AFPORTIONMENT. 


251 


4.  As  to  the  question,  what  shall  constitute  a  part  of  the  premises, 
with  reference  to  an  eviction  ;  it  the  lessee  retains  merely  ccriaiQ 
articles  appurtenant  to  a  building  from  which  he  is  turned  out,  as,  ibr 
instance,  tlie  tools  and  machinery  in  a  mill;  this  is  held  to  be  an 
eviction  from  the  whole  ;  though,  it  seems,  he  would  be  liable  upon  a 
quantum  meruit  for  the  use  of  the  articles,(l) 

5.  The  establishment  of  a  right  of  common  in  the  lands  will  not 
operate,  at  law,  as  an  eviction,  to  apportion  the  rent,  not  being  a  title 
to  the  soil  But,  it  seiins,  there  will  be  an  apportionment  in  equity, 
unless  the  land  be  still  fairly  worth  the  rent  reserved. (2) 

().  There  are  some  cases  where,  although  there  is  no  actual  eviction, 
yet  the  law  will  attach  the  same  consequence  to  the  acts  done,  viz.,  a 
discharge  of  the  rent — the  tenant  having  lost  the  use  of  the  land. 

7.  A  leased  a  house  to  B  for  one  year.  B  indorsed  to  A  the  note 
of  a  third  person,  as  security  for  the  rent;  occupied  for  two  quarters, 
for  which  lie  paid,  and  part  of  a  third;  at  the  end  of  which  time  he 
removed,  delivering  up  the  key.  A  then  let  the  house  to  C,  and  de- 
livered her  the  ke}^ ;  and  afterwards  sued  the  note  in  his  own  name, 
and  obtained  full  satisfaction  of  the  judgment.  B  brings  assumpsit 
against  A,  for  money  had  and  received.  Held,  he  should  recover  the 
amount  of  the  note  and  interest,  deducting  the  balance  due  for  a  part  of 
the  third  quarter's  rent :  that  A  might  be  considered  as  B's  agent  in 
procuring  a  new  tenant,  and  thus  responsible  for  the  rent;  or,  if  not, 
as  having  ousted  B  from  the  house,  or  consented  to  an  assignment  of 
the  term  to  C,  and  accepted  rent  from  her,  which  would  discharge 

8.  If  the  tenant  is  in  law  evicted,  before  the  rent  day  arrives,  by  a 
mortgagee  claiming  under  a  mortgage  prior  to  the  lease,  he  is  dis- 
charged from  the  whole  rent,  notwithstanding,  it  seems,  he  afterwards 
continues  to  occupy  ;  because,  after  the  entry  of  the  mortgagee,  the 
tenant  was  accountable  to  him.(4)(a) 


(1)  Filchburpr,  &c  v.  Molven,  15  Mass.  268. 

(2)  Jew  V.  Third  well,  1  Clia.  Cas   31. 

(3)  Randall  v.  Rich,  11  Mass.  494. 

(4)  Fitchburg,  &a  v.  Melveu,  15  Mass.  268 


See  Hemphill  v.  Eckfeldt,  5  Whar.  274  ;  Field 
V.  Swan,  10  Met.  112;  Giles  v.  Coinstock,  4 
Comst.  470. 


(a)  If  the  mortgagee  enters  for  a  tireacli  of  condition,  and  threatens  to  expel  the  le.ssee  un- 
less he  pay  the  rent  to  him,  which  the  lessee  agrees  to  do.  and  actually  does  ;  tliis  is  an 
eviction.  So  in  case  of  a  claim  under  any  other  paramoutit  title,  and  an  attornment.  And 
if  the  mortgagee  demands  rent,  and  threatens  to  ''put  the  law  in  force,"  the  lessee  lias  a 
good  defence  on  the  ground  of  jiaymeiif,  without  pleading  eviction,  or  nil  hahuit,  to  an  action 
for  rent  by  tlie  lessor.  Smith  v.  Shepard,  15  Pick.  147  ;  Johnston  v.  Jones,  9  Ad.  &  Ell. 
809.     See  Salmon  v.  Mathews.  8  Mee.s.  &  W.  829  ;  Morse  v.  Goddard,  13  Met.  177. 

A,  a  mortgagee  of  leased  lands,  having  a  title  paramount  to  that  of  B,  the  lessor,  recov- 
ered a  ju'lgment  lor  possession,  and  entered  under  an  execution,  liut  left  the  lessee  in  posses- 
sion. Held,  A  migiit  recover  rent  accruing  suhsequr-nt  to  such  entry,  but  not  before.  Mass, 
&c..  V.  Wilson.  10  Met.  126;  see  Newall  v.  Wright,  3  Ma.^s.  153. 

Wiicre  a  ju(igment  creditor  levied  his  execution  upon  real  estate,  under  lease  and  in  the 
occupiition  of  the  lessee,  and,  before  the  rent  became  due,  entered  claiming  title,  and  tiireat- 
ened  the  tenant  to  put  him  out  unless  he  would  yield  possession  and  attorn  ;  whereupon 
the  tenant  agreed,  in  writing,  to  l)old  under  him;  iield,  such  entry  and  disturbance, 
although  not  an  eviction  in  a  technical  sense,  were  equiv.iicnt  to  an  ouster,  and  the  tenant 
was  not  afterwards  liable  to  the  les.sor  for  tlie  rent,  and  might  dispute  liis  title  in  an  action  of 
assumpsit  therefor.     George  v.  Putnej-,  4  Cush.  351. 

A,  having  taken  a  lease,  procured  B  to  become  surety  for  the  rent,  and,  to  indemnify 
him,  executed  a  mortgage  on  certain  land.s,  by  which  he  provided  that,  if  he  failed  ''  to  pay 
the  whole  or  any  part  of  the  rent,"  B  should  have  the  power  to  sell  the  lands.    A,  alleging 


252  RENT— DISCHARGE  [CHAP.  XVII. 

9.  A  leases  to  B  a  portion  of  his  land  ;  afterwards  conveys  the  whole 
land  to  C  in  fee,  reserving  rent;  and  then,  for  non-ptiyment  of  rent  by 
B,  accruing  after  the  deed  to  C,  enters  and  distrains.  Tliis  is  an  evic- 
tion of  C,  which  suspends  his  whole  reut.(l) 

10.  But  where  one  having  a  paramount  title  made  an  entry  upon 
the  lessor,  before  he  gave  the  lease,  but  he  refused  to  deliver  possession, 
and  the  former  then  brought  a  real  action,  and  recovered  judgment 
after  the  lease  was  made ;  held,  such  entry  was  no  eviction,  to  bar  a 
suit  for  the  rent.(2) 

11.  A  mere  breach  of  covenant  by  the  lessor  does  not  excuse  from  the 
payment  of  rent,  though  the  covenant  is  one,  the  performance  of  which 
would  increase  the  value  of  the  premises;  as,  for  instance,  a  covenant 
to  repair.  So,  where  a  lessor  in  fee  covenanted  that  the  lessee  should 
have  common  of  pasture  and  estovers  from  other  lands  of  the  lessor,  and 
afterwards  approved  the  lands,  thereb}^  destroying  the  common ;  held, 
this  covenant  could  not  be  construed  as  a  grant,  and  the  breach  was 
no  defence  to  a  suit  for  the  rent.(8)(o) 

12.  A  mere  entry  upon  the  land  by  the  landlord  is  simply  a  tres- 
pass, and  not  an  eviction  which  discharges  the  rent.  So  an  action  lies 
for  the  rent,  though  the  landlord  has  offered  to  let  and  advertised  the 


(1)  Lewis  V.  Payn,  4  Wend.  423. 

(2)  Fletcher  w.  McFarlane,  12  Mass.  43. 

(3)  Watts?;.  Coffin,  11  John.  495 ;  Ether- 


idcre  V.  Osborn,  12  Wend.  529  ;  Bryan  v. 
Fisher,  3  Blackf.  320  ;  Hill  v.  Bishop,  2  Ala. 
(N.  S.)  320. 


a  failure  on  the  part  of  the  lessor  to  comply  with  the  terms  of  the  lease,  refused  to  keep 
the  premises  the  full  term,  and  to  pay  the  entire  rent,  and  B  became  liable  for  the  whole 
rent.  A  having  abandoned  the  possession,  B  compi-omised  with  the  lessor,  and  gave  the 
lessor  possession  befire  the  expiration  of  the  lease.  B  then  advertised  to  sell  under  his 
mortgage,  and  A  brought  a  bill  in  equity  to  enjoin  the  sale.  Held,  tiiat  A  was  not  released 
from  the  rent  by  the  lessor's  taking  possession,  and,  the  compromise  being  made  by  B  in  good 
faith,  although  not  binding  on  A,  and  being  manifestly  to  his  advantage,  tiiat  equity  would 
not  restrain  B  from  enforcing  his  legal  rights  under  the  mortgage.  Destrehan  v.  Scudder, 
11  Mis.  484. 

The  entry  of  the  landlord  on  premises  left  by  the  tenant  during  the  term,  putting  another 
person  in  possession,  and  refusing  to  permit  the  assignee  or  agent  of  the  tenant  to  occupy 
during  the  residue  of  the  term,  constitute  an  eviction,  which  suspends  accruing  rent,  but 
not  that  whicli  has  fallen  due  before  entry.     Briggs  v.  Thompson,  9  Barr,  338. 

(a)  A  .sold  land  to  B,  with  covenants  against  incumljrances,  which  were  known  to  him, 
and  also  covenants  for  quiet  enjoyment;  for  wliicli  B  was  to  paj'  ground-rent;  and  A 
agreed  to  advance  B  money  for  building,  for  which  the  rent  was  to  be  increased.  A  grant- 
ed tlie  rent  to  C,  and  tlie  grant  was  recorded  ;  and,  before  the  deed  was  delivered,  B  gave 
notice  to  C,  that  A  had  failed  to  advance  the  money.  Held,  in  an  action  by  C  against  B 
for  the  rent,  as  B  had  tiie  above-mentioned  covenants,  he  could  not  keep  back  the  rent, 
which  was  in  tlie  nature  of  purchase-money,  though  the  mortgages  were  not  satisfied  and 
the  land  was  unproductive ;  that,  as  A  had  failed  to  advance,  and  C  had  notice,  B  could  keep 
back  the  part  of  the  rent  which  was  the  consideration  for  tiie  advance  ;  that,  if  C  had  paid 
the  whole  purchase-money  for  the  grant  of  the  rent  before  notice,  she  would  be  protected 
for  tlie  whole,  or  ;j>o  ia?(fo  where  part  had  been  paid.     Juvenal   v.  Jackson,    2    Harris,  519. 

Unnecessary  and  tortious  delay  and  negligence  of  a  landlord,  in  making  repairs  during 
the  term,  to  the  injury  of  the  tenant,  cannot  Ije  set  up  as  an  eviction,  where  tiie  tenant  con- 
tinues in  po.''session  a  year  afterwards.     Cram   v.    Dre.?ser,  2  Saiidf.  120. 

In  an  action  of  covenant  (or  rent,  it  appeared  that,  between  the  date  of  the  covenapt  and 
the  time  when  the  tenancy  was  to  have  commonced,  the  house  was  rendered  unfit  for  use 
by  the  wrongful  act  of  the  landlord,  whereupon  the  tenant  refused  to  take  possession. — 
Held,  the  landlord,  was  not  entitled  to  recover.     Cleves  v.  Willoughby,  7  Hill,  83. 

Lessees  of  land,  on  one  side  of  a  river,  with  the  ferry  privilege  belonging  to  the  same, 
acquired  the  land  on  tiie  opposite  side,  and  the  right  of  ferry  from  that  side,  according  to  law, 
by  giving  bond  to  the  commissioners.  In  covenant  against  them  on  the  lease  for  rent,  they 
pleaded  tiiat  they  had  been  evicted.  Held,  the  facts  did  not  sustain  the  plea.  Huff  v. 
Walker,  1  Smith,   134, 


CHAP.  XVII]  AND  AlTORTIuXMKNT.  253 

premises,  and  thereby  prevent  m1  applic;itions  for  under-letting;  and 
though  they  liave  been  unoecupied.(i)(a) 

13.  It  is  said,  the  erecting  by  the  hmdlord  of  a  nuisance  upon  adjoin- 
ing land  will  not  have  the  effect  of  eviction  as  to  payment  of  rent.('2) 
But  an  intentional,  annoying  and  injurious  interference  \yith,  or  dis- 
turbance of,  the  benelicial  enjoyment  of  the  premises,  &ti»j)ends  the  rent, 
without  any  piiysical  expulsion.  So,  if  committed  by  the  family  of 
the  landlord.  The  fact  that  the  premises  leased  are  in  an  unhealthy 
condition,  if  the  tenant  has  entered,  is  no  defence  against  a  claim  lor 
rent.  If  he  take  measures  speedily  to  remove  the  cause  of  c(Mnplaint, 
he  may  claim  a  deduction  for  the  expense.  Otherwise,  wheie  he  en- 
tered knowing,  or  having  opportunity  to  know,  the  facts.(3) 

14.  Where  a  very  gross  anil  excessive  nuisance  occurred  upon  the 
premises  themselves,  by  the  breaking  asunder  of  a  privy  therein,  and 
the  tenant  quit  as  soon  as  he  could  find  other  accommodations  ;  held, 
he  was  not  liable  afterwards  lor  use  and  occupation. (4) 

15.  The  accidental  spreading  of  a  poisonous  substance  over  a  j)a.sture 
leased,  whereby  cattle  died,  was  held  not  to  discharge  the  rent. (5) 

15  a.  A  landlord  may  erect  a  liuilding  on  a  lot  adjoining  him,  tliough 
it  darkens  the  windows  of  the  building  on  the  lot  demised.  Such  erec- 
tion is  not  an  eviction,  if  it  is  a  ground  of  damages.(6) 

15  b.  A  leased  the  lower  part  of  a  house  to  B,  and  afterwards  the 
upper  part  to  C.  B  used  his  part  for  purposes  of  prostitution,  accom- 
panied by  drinking,  noise  and  riot,  of  which  C  gave  A  notice.  A  de- 
nied all  knowledge  of  such  use.  C  having  quit  tlie  premises  leased  to 
him;  held,  in  an  action  for  rent,  the  above  facts  were  no  defence; 
that  it  was  no  more  the  duty  and  right  of  the  landlord  than  of  any 
other  person,  to  abate  the  nuisance  of  a  bawdy-house.(7) 

15  c.  A  landlord  himself  occupied  the  room  over  the  premises  leased, 
as  a  grocery  store,  the  drippings  from  which  rendered  the  leased  pro- 
perty unfit  for  use ;  whereupon  the  tenant  abandoned  them  to  the  les- 
sor.    Held,  he  was  no  longer  liable  to  pay  rent.(b) 

16.  In  the  cases  above  mentioned,  the  tenant  is  deprived  of  his  land 
by  the  fault  of  the  lessor;  consisting  either  in  a  wrongful  entry  made 
by  himself,  a  wrongful  use  of  other  land,  or  in  convening  a  defective 
title,  which  is  afterwards  defeated  by  third  persons.  But  there  are 
other  cases  of  a  different  sort ;  where  the  tenant  loses  his  land  or  build- 
ings, wholly  or  in  part,  by  inevitable  accident  or  irresistible  force. 
Upon  this  point,  the  Ibllowing  distinctions  seem  to  be  established,  though 
not  with  the  perfect  clearness  that  might  be  desired. 

17.  Where  the  tenant  is  deprived  of  the  use  of  the  leased  premises, 
he  is  discharged  from  any  mere  l<yal  llahilitij  resulting  from  his  lease 

(1)  Wilson  V.  Smitli,  5  Ycrg.  379 ;  Ogilvio]  (4)  Cowie  v.  Goodwin,  9  Cnrr  &  P.  378. 
V.  Hul',  5  Hill,  52.  (5)  Sutton  v.  Temple,  12  M.  &  W.  52. 

(2)  3  Kent,  371.  |  (G)  Pi.lmer  v  Welmore,  2  Sandi:  316. 

(3)  Cohen  v.  Dupont.  I  Sandf.  2G0  ;  West-]  (7)  ailliooly  v.  Washington,  3  Siindf.  330. 
lake  V.  De  Grave,  25  Woud.  609.                      ,  (8)  Jackson  v.  Eddy,  12  Miss.  209. 

(a)  As  to  the  effect  of  an  eviction,  by  tlio  taking  of  the  premises  for  public  uses,  see  ante, 
ch.  15,  sec.  72  &  n.  Where  a  statute  authorized  the  widening  of  a  street,  providintr  coin- 
peiisalion  to  land-owners  by  application  to  a  judicial  tribunal ;  held,  tiiat  a  parly  who  look 
a  lease  of  land  subsequently  to  the  statute,  being  evicted,  had  no  remedy  upon  the  covenant 
for  quiet  enjoyment.     Frost  v.  Earnest,  4  Whar.  86. 


25-i  RENT— DISCHARGE  [CHAP.  XVII. 

and  occupancy,  such  as  waste.  But  if  be  has  expressly  covenanted  or 
agreed  to  pay  I'ent,  he  still  remains  liable,  as  before,  to  an  action  of 
•covenant^  or  an  action  o^  debt.{Y) 

18.  Thus  if  an  arin}^  enter  and  expel  tlie  tenant,  he  is  still  bound 
for  the  rent.(a)     So,  if  a  house  is  blown  down,  or  accidentally  burned, (&) 

(1)  Padine  v.  Jane,  1  Ri)lle's  Abr.  946  ;  Allejn,  26  ;  Stv.  47.     See  Bigelow  v.  Collamore, 
5  Cush.  226. 


[a]  One  of  the  earliest  eases  upon  this  subject  arose  from  a  tenant's  beino:  driven  from  his 
land,  in  the  reign  of  Cliarles  I.,  by  Prince  Rupert  and  his  soldiers.  And  tlie  action  was  not 
covenant,  but  deut.  Tlie  restrvation  was  held  to  make  a  covenant  in  law.  Paradine  v.  Jane, 
Alley n,  26. 

In  South  Carorma,  a  loss  by  the  dangers  of  war  has  been  held  a  good  defence.  Bayly  v. 
Lawrence,  I  Bay,  499.  So,  it  has  been  held,  that,  under  the  plea  of  no  rent  in  arrear,  a 
lessee  may  prove  that  the  house  has  been  rendered  almost  untenantable  by  a  storm,  and 
that  the  landlord  had  notice  to  repair.  And,  in  such  case,  it  seems  the  rent  may  be  appor- 
tioned.    Ripley  v.  Wi.tihtinan,  4  McC.  447. 

In  a  lease  for  years  of  a  mill  driven  by  water,  it  was  stipulated,  that  if  the  premises,  or 
any  part  thereof,  should  be  destroyed  or  damaged,  during  the  term,  by  lire  or  other  unavoid- 
able casualty,  so  as  to  be  rendered  unfit  for  use  and  habitation,  the  rent  reserved,  or  a  part 
thereof,  according  to  the  nature  and  extent  of  the  injury,  should  be  suspended  or  abated, 
until  the  premises  should  be  put  in  a  proper  condition  for  use  by  the  lessor.  In  an  action 
for  rent,  the  lessee  offered  to  show  that  the  water-wheel  had  been  in  use  for  several  years 
previous  to  the  lease,  and  had  frequently  been  out  of  order  and  repaired  ;  that,  during  the 
term,  it  broke  down,  when  going  at  its  ordinary  rate  of  speed  ;  and  that  upon  examination 
it  was  found  to  be  so  rotten,  old,  out  of  repair,  and  worn  out,  as  to  be  almost  worthless,  and 
not  worth  repairing;  but  no  evidence  was  offered  to  show  that  the  condition  of  the  wheel 
was  owing  to  any  special  cause,  or  sudden  event,  or  any  accident  other  than  as  above  men- 
tioned. Held,  the  facts  slated  would  not  entitle  the  lessee  to  a  suspension  or  abatement  of 
the  rent.     Bigelow  v.  Collamore,  5  Cusli.  226. 

In  Pennsylvania,  seizure  and  eviction  by  puhlic  enemies  is  no  defence  to  an  action  for  rent, 
thou-rh  it  discharges  the  obligation  to  give  up  the  premises  in  repair.  Pollard  v.  Shauffer,  1 
Dall.  210. 

Where  a  building  is  torn  down  by  public  authority,  if  the  act  is  unauthorized,  it  is  a  tres- 
pass; if  authorized,  the  authority  was  equall)^  well  known  to  both  ptirties.  In  either  case, 
only  the  balance  of  rent  accruing  subsequently  can  be  deducted  on  this  account,  as  (or  fail- 
ure of  consideration.     Noyes  V.  Anderson,  1  Duer,  342. 

(h)  The  destruction  of  leased  premises  by  fire,  as  would  naturally  be  expected,  has  given 
rise  to  more  questions  and  distinctions  than  any  other  form  of  accidental  or  •providential  loss. 
The  general  rule  is,  undoubtedly,  as  stated  in  the  text;  but  not  adopted  without  douWtand 
discussion,  and  often  qualified  or  modified  by  the  circumstances  of  particular  cases.  The 
practical  importiuice  of  the  subject  is  much  diminished,  by  ttie  almost  universal  custom  of 
expressly  excepting  loss  \ty  fire  from  the  covenant  in  leases  to  pay  rent. 

It  has  been  held  that  an  agreement  to  give  a  lease,  generally  does  not  bind  the  part\'  to 
give  a  lease,  providing,  that  if  the  premises  shall  be  burned  or  rendered  untenantable,  the 
rent  shall  cease  till  they  are  rebuilt  or  repaired.     P^aton  v.  Wliitaker,  18  Conn.  222. 

Where,  after  a  destruction  by  fire,  the  lessor  entered,  took  away  certain  articles,  and 
made  various  uses  of  the  propertj' ;  held,  the  tenant  was  still  bound  for  the  rent.  Belfbur 
V.  Weston,  1  T.  R.  310. 

An  upper  floor  of  a  house  was  occupied,  at  a  rent  payable  (juarterly.  Pending  a  quarter, 
the  house  was  burnt,  and  rendered  untetiantable.  Held,  the  landlord  might  stilj  recover,  in 
an  action  for  use  and  occupation,  at  least  the  amount  of  rent  up  to  the  time  of  the  fiie,  from 
the  preceding  quarter  day.     Parker  v.  Gibbins,  1  Gale  &  Dav.  10. 

So,  it  lias  been  held,  that  a  tenant  from  year  to  year  is  liable  for  use  and  occupation, 
though  the  premises  be  burned.  Izon  v.  Gorton.  5  Biugli.  N.  501  ;  Voluuline  v.  Godirey,  9 
Verm.  186.  It  .seem.s,  if  the  house  is  rebuilt,  the  tenant  might  claim  it.  lb.  But  where 
the  third  story  of  a  house  was  leased  for  a  term,  the  house  burnt  and  rebuilt,  and  a  tender 
made  to  the  tenant  of  his  part,  who  refused  to  take  it;  it  was  left  to  the  jury  to  decide,  in 
an  action  for  rent,  whether  "the  old  law  was  too  severe,"  and  whether  the  facts  showed  an 
eviction.     Law  Rep.,  Feb.,  1841,  p.  390. 

And  where,  a  long  time  after  a  loss  by  fire,  the  tenant  brought  ejectment  against  the  land- 
lord for  the  bouse,  rebuilt  where  the  former  one  stood;  upon  the  ground  of  lapse  of  time, 
and  that  the  landlord,  though  not  bound  to  rebuild,  and  legally  entitled  to  the  rent,  had  not 
enforced  his  claim;  it  was  left  to  the  jury  to  consider,  whether  the  plaintiff  had  not  waived 


CHAP.  XVII.] 


AND  APPORTIONMENT. 


'255 


altliougb  the  lessee  covenanted  to  keep  tlic  premises  in  repair,  cnsual- 
ties  by  lire  only  excepted  ;  his  covenant  to  ]Kxy  rent  will  bind  him 
during  the  terni.(l)     (See  ch.  15.) 

19.  The  general  rule  above  stated  is  founded  upon  the  consideration 
that  a  lease  for  years  is  a  sale  for  the  term,  and,  unless  there  are  express 
stipulations,  the  lessor  does  not  insure  against  inevitabte  accidents,  or 
an}'  other  deterioration  ;  and  that  losses  by  fire  generally  arise  from  the 
carelessness  of  tenants,  which  it  is  the  policy  of  the  law  to  restrain. (2) 

20.  The  rule  above  stated  is  the  ])revailing  one  at  law.  But  ia 
equity  it  has  been  held,  that  a  loss  by  fire  as  effectually  discharges  the 
rent,  as  an  eviction  by  title  ;  and,  although  the  landlord  may  maintain 
an  action  at  law,  that  equity  will  restrain  it  by  injunction,  until  the 
house  is  rebuilt;  especially  where  he  was  insured.  But  neither  land- 
lord nor  tenant  is  bound  to  rebuild,  unless  it  is  so  expressly  agreed.(3) 

21.  But  it  is  further  said,  that  there  is  no  general  rule  in  a  court  of 
equit}'  to  relieve  in  such  a  case.  It  will  afford  relief  only  under  parti- 
cular circumstances.  In  late  English  cases,  Chancery  has  refused  to 
interfere ;  and  Chancellor  Kent  regards  this  as  the  settled  doc- 
trine.(4)(o) 

22.  Where  a  tenant  is  deprived,  by  act  of  God  or  inevitable  acci- 
dent, of  a  part  only  of  the  pretnises  leased,  it  seems  there  will  be  no 
apportionment  of  the  rent.  The  earliest  case  upon  this  point,  was  one 
in  which  a  man  hired  land  and  a  flock  of  sheep  together.  The  whole 
flock  having  died,  it  was  contended  that  the  rent  should  be  apportioned  ; 
but  the  question  was  not  decided. (5)  Where  a  mill  was  carried  away 
b}'  ice,  it  was  held,  that  the  tenant  was  still  bound  to  pay  rent,  partly 
on  the  ground,  that  this  was  only  a  partial  destruction  of  the  property 
leased — a  fishery  and  other  valuable  rights  being  still  left.(6)  If  a  part 
of  the  land  is  surrounded  by  water,  or  swe[)t'by  wild-fire,  there  shall 
be  no  apportionment.  But  if  a  part  of  it  be  covered  or  surrounded  by 
the  sea,  the  rent  shall  be  apportioned,  because  the  tenant  loses  the  use 
of  the  land,  with  very  slight  chance  of  regaining  it. (7) 

The  complainant  hired  a  store  in  Boston  for  three  3'ears,  coven- 


9S 


(1)  Monk  V.  Cooper,  2  Ld.  Ray.  1477  ; 
Hallett  ('.  Wylie,  3  John.  44 ;  Lnmott  t;.  Steretl, 
1  Harr.  &  J.  42  ;  Taverner,  Dyer,  56  a  ;  Car- 
ter V.  Cummins,  1  Clia.  Cas.  84 ;  Wliite  v. 
Molviieux,  2  Kelly,  124. 

(2)  Fowler  v.  BoU,  6  Mass.  67 ;  3  Kent, 
373-4;  Cline  v.  Blnck,  4  MoC.  431  ;  (which 
case  Iri-ats  the  Eiij!;lisli  rule  on  llie  subject 
as  dou'iitful.  And  see  Brown  v.  Quitter, 
Ambl.  621.) 

(3)  Treat,   of  Equ.   lib.   1,  ch.    5,    see.    8; 


Brown  v.  Quitter,  Amb.  619  ;  Steele  v. 
Wright,  1  T.  R.  708 :  Gates  v.  Green,  4  Paige, 
355. 

(4)  1  T.  R.  710;  Fowler  v.  Bott,  6  Mass. 
68;  Hare  v.  Groves,  3  Anst  687;  Hottpzaf- 
fell  v.  Balder,  18  Vez  115;  White  i;.  Moly- 
neux.  2  Kelly,  124. 

(5)  Taveiner's  case.  Dyer,  55  b;  Hart  v. 
Windsor,  12  Mees.  k  W.'68. 

(6)  Rossr.  Overton,  3  Call,  268. 

(7)  1  RoUe's  Abr.  236. 


his  riylit  to  tlie  premises  at  tlie  time  of  the  fire  ;  and  they  found  for  the  defendant.  Doe  v. 
Sandhiiiii.  1  T.  R.  710;   Baker  v.  Iloltpzoflell,  4  Taun.  45. 

In  a  suit  for  rent  ol'  premises  destroyed  by  (ire,  evidence  that  the  property  was  insured, 
and  the  Imdloni  received  the  insurance  money,  or  that  he  received  money  for  loss  of  the 
properly,  out,  of  a  peiif*ral  relief  fund,  is  not  a  defence      Magaw  v.  Lambert,  3  Barr,  444. 

But  if  a  landlord  take  possession  of  the  ruins  of  his  premises  destroyed  by  (ire,  (or  the 
purpose  of  re-building,  if  without  the  consent  of  his  tenant,  it  is  an  eviction  ;  if  with  his  assent, 
it  is  a  roscission  of  the  lease;  and  in  either  case  the  rent  is  suspended.    lb. 

(«)  So,  wliere  there  is  a  covenant  to  pay  rent  and  repair,  witli  express  exception  of  casu- 
alties by  (ire,  tlie  lessee  is  liaiile  for  rent,  though  the  premises  be  burned  and  not  rebuilt 
after  notice;   nor  will  equity  restrain  a  suit  therefor.     Ward  v.  Bull,  1  Branch,  271. 


256 


RENT— DISCHARGE 


[CHAP.  XVII. 


anting  to  pay  the  rent  and  leave  the  premises  in  good  repair  at  the  end 
of  the  term,  and  the  lessor  reserving  a  right  to  enter  and  make  im- 
provements. The  front  part  of  the  Jand  was  taken  and  the  front  wall 
of  the  building  cut  off  by  the  city,  in  order  to  widen  the  street.  Held, 
the  term  was  not  thereby  ended,  nor  the  tenant  discharged  from  his 
covenants  to  pay  rent.(l)(a) 

24.  Lease  of  three  rooms  and  a  landing  upon  a  canal,  with  a  front  of 
200  feet,  and  a  covenant  to  pay  rent  while  permitted  to  occupy.  The 
rooms  being  burned,  held,  there  was  no  discharge,  but  only  a  propor- 
tional abatement  of  the  rent,  unless  the  rest  of  the  property  was  sur- 
rendered.(2) 

24.  a.  A  leased  store  was  burned,  the  whole  rent  having  been  paid 
in  advance,  and  the  lessor  rebuilt  and  leased  to  others.  Held,  the  lessee 
might  recover  so  much  of  the  rent  as  applied  to  the  period  since  the 
new  lease.(8) 

25.  Where  a  lessor,  in  a  lease  of  several  buildings,  covenanted  to 
repair  in  case  of  damage  by  fire,  and  the  lease  provided,  that  in  case  of 
such  damage,  the  rent  for  the  buildings  thereby  rendered  untenantable 
should  cease  while  they  remained  untenantable;  held,  the  covenants 
•were  independent,  and  the  neglect  of  the  lessor  to  rebuild  did  not  ex- 
cuse the  non-payment  of  rent  for  the  buildings  vi^hich  were  unin- 
jured.(4) 

26.  A  purchase,  b}'  the  landlord  from  the  tenant,  of  his  whole  in- 
terest, will  discharge  or  extinguish  the  rent.  But  a  purchase  on  con- 
dition, or  of  a  part  only  of  the  tenant's  interest,  will  not  extinguish, 
but  merely  suspend,  the  rent;  which,  upon  the  termination  of  tlie  par- 
ticular estate  purchased,  or  performance  of  the  condition,  and  the  resto- 
ration of  the  land  to  the  tenant,  will  revive.  So,  if  the  landlord  pur- 
chase only  a  part  of  the  lands,  the  rent  will  be  extinguished  propor- 
lionably  ibr  these  only,  but  still  continue  for  such  part  of  the  lands  as 
are  retained  by  the  tenant.  So  a  landlord  may  release  a  part  of  the 
rent,  and  the  rest  will  remain. (5)  But  if  the  rent  be  payable  in  some 
indivisible  thing,  as  a  horse  or  a  hawk,  a  purchase  by  the  landlord  of 
part  of  the  land  extinguishes  the  whole  rent.  On  the  other  hand,  if  the 
return  to  be  made  is  some  act  for  the  public  benefit — as  to  repair  a  road, 
or  keep  a  beacon — such  a  purchase  will  not  extinguish  the  rent,  even 
in  part.  A  descent  of  part  of  the  tenancy  to  the  owner  of  the  rent  will 
not  extinguish  it,  though  iridivisible.(6) 

27.  Ahhough  formerly  doubted,  it  is  now  settled,  that  a  rent-service, 
being  incident  to  the  reversion,  may  be  apportioned  by  transferring  a 
part  of  the  latter,  with  which  the  rent  will  pass,  without  any  express 
mention  of  it.  So  the  rent  itself  may  be  apportioned  by  devise.(7)  Thus, 
one  having  a  rent  of  £10  may  devise  £6,  part  thereof,  to  A,  B  and  C 


(1)  Patterson  v.  Boston,  20  Pick.  159. 

(2)  Willurd  v.  Tulman,  19  Wend.  358. 

(3)  Wardiv  Bull,  1  Branch,  271. 

(4)  Allen  v.  Culver.  3  Denio,  284. 


(5)  3  Cruise,  20G-7  ;  Gourdine  v.  Davis,  1 
Bai.  469  ;   Lit.  222  ;    18  Vin.  Abr.  50-t. 

(6)  Gilb.  165;   1  Inst.  149  a;  Gilb.  166. 

(7)  3  Cruise,  211. 


(a)  Where  a  statute  authorized  the  widening  of  a  street,  providing  compensation  to  land- 
owners by  application  to  a  judicial  tribunal;  held,  that  a  party  wlio  took  a  lease  of  land 
subsequently  to  the  statute,  being  evicted,  had  no  remedy  upon  the  covenant  for  quiet  ea- 
joyment.    Prost  v.  Earnest,  4  Whar.  86, 


CHAP.  XVII.]  AND  APPORTIONMENT.  257 

severally,  to  each  a  tliird.  In  such  case  each  devisee  (and,  it  seems, 
the  lieir  at  law  also)  may  have  a  separate  remedy  for  his  rent.(l) 

28.  A  rent-service  may  also  be  apjiortioiied,  by  an  assignment  by 
act  of  law  ;  as  where  a  legal  process  is  levied  upon  a  part  of  the  re- 
version, or  where  the  widow  of  the  landlord  recovers  one-third  of  the 
reversion  for  her  dower.  So  in  case  of  the  death  orf-71  landlord,  each 
of  several  heirs  may  sue  separately  for  his  portion  of  the  rent,(2) 

29.  At  common  law,  if  a  tenant  for  life,  having  underlet  the  land, 
died  before  the  rent  fell  due,  neither  his  executor,  nor  the  reversioner, 
nor  remainder-man,  could  recover  a  proportional  part  of  it.  The 
former  could  not,  because  his  only  claim  would  be  for  use  and  occupa- 
tion, which  would  not  lie  upon  a  sealed  lease ;  nor  the  latter,  because 
the  rent  did  not  accrue  in  his  time.  St.  11  Geo.  II.  ch.  19,  s.  15,  pro- 
vides, that  in  such  case  the  executors,  &c.,  may  recover  rent  for  the 
time  that  the  tenant  occupied,  p?-o  rata  ;  and,  if  he  died  upon  the  rent- 
day,  the  whole  amount.  But  this  act  applies  only  where  the  lease 
ends  with  the  death  of  tenant  for  life.  If  it  does  not  thus  terminate, 
the  rent  goes  to  the  person  in  reversion  or  remainder.(3)(a) 

SO.  In  equity,  this  statute  has  been  held  to  extend  to  a  tenant  in 
tail  dying  without  issue. 

31.  Thus,  where  such  tenant,  having  leased  for  years,  died  without 
issue  a  short  time  before  rent-day,  and  the  whole  rent  was  paid  to  the 
remainder-man  :  held,  the  executor  of  tenant  in  tail  might  maintain  a 
bill  against  the  remainder-man,  for  such  part  of  the  rent  as  accrued  be- 
fore the  tenant's  death  ;  upon  the  grounds,  that  the  case  was  within 
the  equity,  though  not  the  words,  of  the  act ;  and,  where  equity  linds 
a  rule  of  law  agreeable  to  conscience,  it  pursues  the  sense  of  it  to 
analogous  cases ;  and  also  (and  chiefly)  that,  the  tenant  not  having 
been  legally  bound  to  pay  the  rent  to  any  one,  the  payment  should  be 
applied  to  the  benefit  of  those  equitably  entitled  to  the  respective  pro- 
portions.(4) 

32.  It  has  been  said  of  the  foregoing  ca.se,  that  it  seems  rather  to  be 
a  decision  what  the  statute  ought  to  have  done,  than  what  it  has  done. 
But  it  was  at  the  same  time  held,  that,  where  one  occupied  from  year 
to  year,  under  the  guardian  of  an  infant  tenant  in  tail,  inasmuch  as  the 
lessee  was  in  under  no  lease  or  covenant,  but  merel}'  an  implied  con- 
tract, he  could  not  raise  an  implication  that  he  was  to  occupy  rent  free, 

(1)  Collins  V.  Harding,  13  Rep.  57  ;  Gilb.  |  Montague  t>  Gay,  17  Mass.  4.39;  Cole  v.  Pat- 
173:  Ards  r.  Walkins,  Cro.  Kliz.  6:>7,  651  ;  1  ter.^on,  25  Wend.  456. 

Daniels  v.  Ricliardson,  22  Pick.  565.  See  (3)  Jonner  r.  Mor<raii,  1  P.  Wms.  392 ;  3 
Salmon  v.  Mathews,  8  Mees.  &  W.  827 ;  Cruise,  213 ;  Perry  i;.  Aldricli,  13  X.  II.  343. 
Croshy  V.  Loop,  13  Iliin.  625.  (4)  Paget  v.  Geo,  Ambler,  198. 

(2)  Campbell's  case,  1  RoUe's  Abr.  237  ;  ' 


(a)  Tlie  statute  of  apportionment,  (4  Wm.  IV,  c.  22,)  does  not  apply  as  between  tlie  exe- 
cutor and  iieir  of  a  tenant  in  fee.     Beer  v.  Beer,  9  Eng.  L.  &  Equ.  468. 

In  Delaware,  rent  may  be  apportioned  between  tenant  for  life  and  remainder-man.  Rev. 
Sts.  cli.  120.     So  in  Iowa.     Code,  1851,  ch.  82. 

The  pliiintinr.  a  tenant  ;k>m?-  autre  vie,  leased  the  land  during  the  life  of  the  cestui,  at  an 
annual  rent,  payable  on  the  Isi  of  April  in  each  year.  The  cesUu  died  October  tsth.  Held, 
the  les:^eo  was  not  liable  for  rent  to  the  plaintilf  from  April  to  October;  the  statute  of  Geo. 
II.  not  authorizing  an  action  by  the  plaintiff.     Perry  v.  Aldrich,  13  N.  H  343. 

Vol.  I.  17 


258 


RENT— DISCHARGE 


[CHAP.  XVII. 


and,  tlie  whole  amount  having  been  paid  to  the  receiver,  the  portion 
accruing  before  the  infant's  death  was  awarded  to  his  executors.(l)(a) 

83.  In  case  of  a  rod-charge,  if  the  owner  of  tlie  rent  purchase  any 
part  of  the  hind  from  which  it  issues,  the  whole  rent  is  extinguished. 
The  reason  of  this  distinction  between  a  rent-service  and  a  rent-charge 
is,  that,  while  the  former,  consisting  originally  in  feudal  services,  was 
favored  hy  the  law,  and  not  allowed  to  be  detached  from  any  lands 
held  by  tenants  ;  tlie  latter  is  against  common  right,  of  no  public  ben- 
efit, and  issuing  out  of  every  part  of  the  land,  so  that  the  law  will 
enforce  it  only  according  to  the  original  contract.(2) 

34.  But  if  the  grantor  of  the  rent,  after  such  purchase,  make  a  deed 
to  the  grantee,  reciting  the  purchase,  and  authorizing  the  grantee  to 
distrain  for  the  rent  upon  the  remaining  land;  tiiis  amounts  to  a  new 
grant.(3)  And,  if  a  part  of  the  land  come  by  descent  to  the  owner  of 
the  rent,  the  latter  shall  be  apportioned  according  to  the  value  of  the 
remaining  land.(4)  If  the  owner  of  a  rent-charge,  issuing  out  of  three 
acres  af  land,  release  one  of  them  from  it,  the  whole  is  discharged. 
But  if,  being  entitled  to  a  certain  sum,  he  release  a  part  of  that  sum, 
the  balance  remains.  It  is  said,  that  in  the  latter  case  he  deals  with 
the  rent,  which  is  his  own  ;  and  in  the  former  with  the  land^  which  is 
another's.(5) 

85.  In  Pennsylvania,  as  has  been  stated,  (ch.  16,)  n.  ground-rent,  reserv- 
ed upon  a  conveyance  in  fee,  is  a  rent-service.  Hence,  if  the  owner 
release  a  part  of  the  land  from  it,  the  remaining  laud  shall  be  still 


(1)  Vernon    v.  Vernon,    2    Bro.    11 
Hawkins  v.  Kelly,   S  Ves.  308. 

(2)  Co.  Lit.  147  b;  Gilb.  152. 

(3)  Co.  Lit.  147  b. 


659: 


(4)  Lit.  224;   Gilb.  156. 

(5)  18  Viti.  Abr.  504;  Gilb.  163;  Co.  Lit. 
148  h;  3  Vin.  Abr.  10,  11 ;  Far  ey  v.  Craig. 
6  tlalst.  262. 


(rt)  Held,  iii  a  late  case,  that  the  act  providing  for  an  apportionaient  of  rent  does  not 
apply  to  unwritten  leases  from  year  to  year.     Markley,  4  My.  &  C.  484. 

Tlie  principle  of  apportionment  may  be  applied  to  the  tenant,  as  well  as  the  landlord. 
"Where  a  lessee  assigns  part  of  liis  interest,  the  rent  may  be  apportioned,  and  the  lessor 
may  sue  the  assignee  in  covenant  for  his  proportion.  Van  Rensselaer  v.  Bradley,  3  Denio, 
135. 

In  an  action  against  the  assignee  of  a  part  of  the  demised  premises  ibr  rent,  the  plaintiff 
may  declare  against  him  as  assignee  of  a  specified  part,  in  which  case  his  recovery  will  be 
limited  to  tliat  part;  or  he  may  declare  for  the  whole,  and  leave  the  defendant  to  take  issue 
on  the  assignment  by  plea  or  evidence.     Van  Kensselaer  v.  Jones,  2  Barb.  643. 

The  rent  must  be  a[)portioned  according  to  the  value  of  the  part  held  by  him  compared 
with  the  whole.  And,  if  there  is  no  proof  of  the  relative  value,  the  premises  will  be  pre- 
sumed to  bo  of  equal  value,  and  the  rent  sliould  be  apportioned  according  to  quantity.     lb. 

But,  generally,  the  apportionment  of  rent  among  several  assigi>ees  must  be  according  to 
value,  and  not  quantity,  or  number  of  acres.  (Whittlesey,  J.,  dissenting.)  Van  Rensselaer 
V.  Gallup,  5  Beiiio,  454. 

A  severance  of  the  occupation  of  demised  premises,  the  rent  being  paid  to  the  lessor  by 
the  respective  tenants,  is  not  a  .severance  of  tlie  conditions  of  the  lease,  and  a  breach  by 
one  works  a  forfeiture  oCthe  whole  lease.     Clarke  v.  Cummings,  5  Barb.  339. 

In  Michigan,  (Rev.  Sts.  265.)  one  in  possession  of  land,  from  which  a  rent  is  due,  is  liable 
for  a  proportional  part,  though  he  has  only  a  portion  of  the  land  charged. 

With  regard  to  ihe  principle  on  which  rent  is  to  be  apportioned  as  to  time,  the  following 
case  occurred  in  Pennsylvania  : 

The  Bedford  Sprini^s  were  leased  for  a  term,  commencing  April  1,  at  an  annual  rent,  pay- 
able Sepieirtber  1,  which  was  the  conclusion  ol'  the  watering  season.  In  applying  the  pro- 
ceed.s  of  the  tenant's  goods,  sold  on  execution,  to  the  lien  of  the  landlord ;  held,  tlie  rent 
should  be  apportioned  according  to  the  interval  between  tl  e  commencement  of  the  current 
year  and  the  day  of  payment,  not  on  the  basis  of  the  whole  year.  Anderson,  &c.,  3  Barr, 
218. 


CHAP.  XVII.] 


AND  APPORTIONMENT. 


259 


proportionably  chargeable ;  more  especially  if  the  release  has  an  express 
saving  of  such  liability  .(I) 

3t).  It  is.  said  to  be  a  common  practice  in  England,  for  the  owner  of 
a  rent-charge  to  join  in  convc3'ing  that  part  of  the  land,  which  it  is 
agreed  to  discharge  from  the  rent,  with  a  proviso  in  the  deed,  that  the 
rest  of  the  land  shall  still  remain  liable.  But  since 4,his  operates  as  a 
new  grant,  the  rent  will  be  postponed  to  any  prior  incumbrance  on  the 
land.  Sometimes,  where  the  owner  of  the  lands  conveys  a  part  of 
them,  the  grantee  of  the  rent-charge  covenants  not  to  distrain  or  enter 
upon  the  [lart  conveyed.  But,  it  seems,  this  might  discharge  the 
whole  rent. (2) 

'{il.  A  rent-charge  may  be  apportioned  either  by  act  of  parties  or  act 
of  law.  Thus,  if  the  owner  assign  a  portion  of  it  to  another,  each  shall 
hold  his  respective  share,  and  be  entitled  to  his  remedy.  The  reason 
of  the  rule  is,  that  the  whole  land  remains  liable  as  before,  and  that  the 
policy  of  the  law,  having  allowed  this  kind  of  rent,  will  not  prevent 
a  distribution  of  it  among  children.  Anciently,  to  effect  such  appor- 
tionment, the  tenant  was  obliged  to  attorn  to  the  assignee  ;  after  which, 
he  could  not  complain  of  being  subjected  to  two  suits  instead  of  one. 
And,  although  the  practice  of  attornment  is  uow  for  the  most  part  done 
away,  yet,  as  the  tenant  may  avoid  any  suit  by  punctual  payment,  the 
rule  still  prevails.  So,  a  part  of  a  rent-charge  may  be  taken  by  legal 
process,  which  will  effect  an  apportionment.(3) 

38.  If  a  part  of  the  lands,  from  which  the  rent  issues,  descend  to  the 
owner  of  the  rent,  the  latter  shall  be  apportioned,  inasmuch  as  the 
party  acquires  the  land  by  act  of  law,  and  not  by  his  own  act.(-i) 

39.  The  feoffee  of  a  husband  grants  a  rent-charge  to  the  wife.  The 
husband  dies,  and  one-third  of  the  land  charged  is  assigned  for  dower. 
The  rent  shall  be  apportioned,  and  not  issue  wholly  from  theresidue.(5) 


(1)  Supra,  ch.  IG;  IngorsoU  v.  Sergeant,  1 
Whart.  337. 

(2)  3    Cruise,    209;    Butler   v.    Monuings, 
Noy,  5. 

(3)  Gilb.  163;  18  Yin.  Abr.  504;  Farley 


V.  Crai!?,  6  Halst.  2G2-273  ; 
5  Mees.  &  W.  255. 

(4)  Lit.  224;   Gilb.  156. 

(5)  Co.  Lit.  32  b,  n.  3, 


Rivls  V.  Watson, 


260 


TVASTE. 


[CHAP.  XVIII. 


CHAPTER   XVIII. 


WASTE. 


1.  Importance  of  the  subject. 

2.  American  doctrine. 

3.  Defiiiiiiun. 

4.  VolnulHry  or  permissive. 
6.  Felling  timber. 

10.  American  law. 
12.  Waste  of  buildings. 

19.  Lo.ss  by  lire. 

20.  Disturbance  of  the  soil — mines,  &c. 
23.  Conversion  of  tlie  land. 

25.  Heir-looms — destruction  of. 
26-59.  Permissive  waste — repairs. 
30.  Act  of  God. 
32.  Amount  of  waste. 
34.  Who  punishable  for — tenant  for  life, 


&c. — Statutes  of  Marlbridge,  &e. 

36.  Ecclesiastical  persons. 

39.  American  doctrine. 

47.  Who  may  sue  and  be  sued  for. 

56.  Waste  by  third  persons. 

53.  Action  on  tlio  case  for. 

60.  Injunction  and  other  equity  proceed- 
ings. 

68.  Property  in  timber  cut,  &c. — who  has; 
contingent  remainders,  &c. 

76.  Cutting  of  timber  by  order  of  Court. 

80.  Lease  without  iwpeachratnt  of  waste, 
&c. 

92.  Special  provisions  as  to  waste  in  the 
United  States. 


1.  In  treating  of  estates  for  life  and  for  years,  many  incidents  or 
qualities  have  been  noticed  which  are  common  to  both  estates.  It 
remains  to  consider  another  subject,  of  much  importance,  the  principles 
of  law  pertaining  to  which  are  for  the  most  part  alike  applicable  to 
tenant  for  life  and  tenant  for  years.  This  is  the  subject  of  loaste.  Lord 
Coke  says,  "it  is  most  necessary  to  be  known  of  all  men."(l) 

2.  Chancellor  Kent  remarks,(2)  that  the  Am.erican  doctrine  on  the 
subject  of  waste  is  somewhat  varied  from  the  English  law,  and  is  more 
enlarged  and  better  accommodated  to  the  circumstances  of  a  new  and 
growing  country.  So  it  is  said,  in  this  couutr}^,  no  act  of  a  tenant 
amounts  to  waste,  unless  it  is  or  may  be  prejudicial  to  the  inheritance, 
or  to  those  who  are  entitled  to  the  reversion  or  reraainder.(3)  But, 
inasmuch  as  the  English  doctrine  remains  wholly  applicable  in  some  of 
the  States,  and  in  the  rest  has  undergone  very  partial  change,  this 
doctrine  will  be  first  stated,  and  then  qualified  by  an  account  of  such 
alterations  as  the  statutes  or  judicial  decisions  ot  the  respective  States 
have  introduced. 

3.  Waste  is  the  destruction  of  such  things  on  the  land,  by  a  tenant 
for  life  or  for  years,(a)  as  are  not  included  in  its  temporary  2^>'(>fi(s. 


(I)  Co.  Lit.  54  b. 

(2;  4  Kent,  76 ;  Kidd  v.  Dennison,  6  Barb.  9. 


(3)  Pynchon  i:  Stearn;?,  II  Met.  304. 


(a)  In  some  cases  the  term  is  applied  to  otiier  tenants  than  for  life  or  years;  as,  for  in- 
stance, to  an  adverse  claimatit  in  possession.  Thus  it  is  held,  that  where  a  defendant  in 
an  ejectment  suit  has  been  in  posse.ssion  for  many  years,  claiming  in  fee,  in  his  own  right, 
and  in  hostility  to  the  plaintiff,  be  should,  until  legally  evicted,  be  permitted  to  remain  in 
the  full  enjoyment  thereof,  to  tlie  extent  that  he  would  be  were  no  adverse  claim  set  up; 
sul)ject  to  the  restriction,  that  he  shall  not  commit  a  permanent  and  lasting  injury  to  tlie 
inheritance;  and  the  cutting  down  of  such  trees  as  it  is  necessary  to  cut  down  for  the  regu- 
lar clearing  up  and  improvement  of  the  lot,  so  as  to  put  it  in  proper  farming  condition,  ac- 
cording to  the  rules  of  good  husbandry,  is  not  waste;  but.  shonld  the  defendant  continue  to 
cut  down  timber  or  other  wood,  so  as  to  encroach  upon  what  should  be  left  and  preserved, 
as  necessary  for  repairs  offences  and  other  erections,  and  for  firewood,  it  seems  he  would 
be  guilty  o(  waste,  and,  upon  application,  would  be  restrained  and  punished.  Tho  People 
V.  Davison.  4  Barb.  109. 

So,  under  ^contract  of  sale,  giving  time  for  payment  of  the  purchase-money,  the  purchaser 


CHAP.  XVlir.]  WASTE.  261 

In  other  words,  it  consists  in  such  acts  as  tend  to  the  permanent 
loss  of  the  owner  in  fee,  or  to  destro}'  or  lessen  the  value  of  the  in- 
heritance.(l)(a) 

4.  Wiistc  iti  ehher  voluiilari/  or  pennuisive ;  the  former  consisting  in 
some  positive  act,  the  U\tter  in  mere  neglect  or  omissj.t2n.(A) 

o.  Of  V(jluntary  waste,  tlieie  arc  various  kinds. 

6.  The  first  and  perhaps  principal  l<ind,  is  the  felling  of  timber  trees; 
which,  although  the  tenant  has  a  qualified  property  in  them  for  shade 
and  shelter,  and  for  the  masts  and  fruit — he  has  no  right  to  cut  down, 
more  especially  if  it  is  bad  husbandry  to  do  so,  and  no  pretence  of  its 
being  done  for  estovers.  But  he  may  cut  coppices  and  underwoods,  ac- 
cording t(j  custom,  and  at  seasonable  times.  So  the  thinnings  of  fir 
trees  less  than  20  years  old  belong  to  the  tenant  for  life.  lie  has,  how- 
ever, no  property''  in  the  underwood,  before  it  is  cut;  and  therefore 
cannot  have  an  account  of  what  was  wrongfully  cut  by  a  preceding 
tenant.(2) 

7.  Where  the  timber  is  included  in  a  lease,  the  lessee  may  have  tres- 
pass against  the  lessor  for  felling  the  trees,  and  the  lessor  ivaste  against 
the  lessee,  yind,  if  a  stranger  fell  them,  each  may  have  his  own  ap- 
propriate action.  The  landlord  cannot  have  trespass..  When  the  trees 
are  exin'essly  excepted,  the  lessor  has  an  implied  power  of  going  on 
the  land  to  fell  them,  and  may  sue  the  lessee  for  any  injury  done  to 
them.  So  he  may  maintain  trespass  against  a  stranger.  Where  the  tim- 
ber is  neither  expressly  included  nor  excluded,  it  would  seem  that  the 
tenant  has  the  right  to  have  it  continui:;d,  but  no  right  to  cut  it  down, 
unless  waste  is  expresslj'  authorized. (3)(c) 

(1)  1  Swift,  517-8.  I      (3)  11  Rep.  48  a;  Pomfrety.  Rioroft,  1  Sauu. 


(2)  Co.  Lit.  53  a;  Rich.  Liford's  case,  11 
Rep.  48  b;  Pigot  ?;  Bullock,  1  Ves  juii.  479; 
7  N.  II.  171  ;  Ridgelcy  v.  Rawliiig,  2  Coll. 
275;  EdtiG  v.  Pemberton,  12  Mees.  &  W.  187. 
See  5  Mees.  &  W.  11. 


322,  11.  5  ;  -Foster  v.  Spooner,  Cro.  Eliz.  18  ; 
Ileydoii  V.  Smith,  Godb.  173;  Jacksoti  v.  Ga- 
tor, 5  Ves.  688. 


to  have  possession  in  the  mean  time,  and  the  privilege  of  converting  the  timber  into  lumber 
for  the  purpose  of  payment ;  the  court  will  not  grant  an  injunction  to  prevent  him  from 
cutting  timber,  there  being  no  allegation  nor  proof  that  the  land  would  not  bo  an  adequate 
security  for  the  money,  without  the  timber.  Van  Wyck  v.  Alliger,  6  Barb.  507.  But  where 
A  and  B  entered  into  a  contract  for  an  exchange  of  lands,  and  subsequently  pa.ssed  the 
deeds  of  conveyance  and  delivered  possession,  before  which  time,  and  after  the  contract  of 
sale,  A  committed  waste  on  the  land  sold  by  him;  held,  B  might  maintain  an  action  on  the 
case  against  him.     Marsh  v.  Current,  6  B.  Mon.  493. 

(a)  According  to  this  definition,  the  term  luaste  does  not  per  se  import  anything  wrong  or 
unlawful;  because  it  may,  under  certain  circumstances,  be  lawfully  committed.  Thus,  as 
will  be  seen,  a  particular  tenant  may  hold  the  land  "without  impeachment  of  waste;"  that 
is,  witli  the  privilege  of  committing  wa,ste.  The  word,  however,  is  more  generallj^  used  in 
the  diCferent  sense  of  an  unauthorized  or  illegal  destruction  of  timber,  &c.  According  to  the 
latter  meaning,  we  should  saj',  "  for  a  tenant  to  cut  timber,  &c.,  is  waste ;"  according  to 
the  former,  "a  tenant  cannot  lawfully  commit  waste  by  cutting  timber,  &c.  (See  ch.  1, 
sec.  74,  n.) 

(b)  As  to  the  distinction  between  them,  see  Martin  v.  Gilham,  7  Ad.  &  Ell.  540. 

(c)  A  lessor  covenanted,  that  the  lessee  should  have  as  much  firewood  as  she  should  de- 
sire from  a  certain  tract  ol^  land;  and  then  cut  most  of  the  wood  thereon,  and  converted  it 
to  his  own  use.     Held,  a  breach  of  the  covenant.     Lovering  ■;;.  Lovering,  13  N.  H.  513. 

A  lease  contained  the  following  cl.iuse :  "All  the  timber  in  the  .southeast  corner,  of 
about  five  acres,  suitable  and  proper  for  fuel,  to  be  left,  and  not  cleared."  Held,  the  corner 
land  specified  was  not  excepted  from  the  lease,  but  the  clause  amounted  to  an  agreement 
not  to  cut  the  timber  thereon  ;  and,  therefore,  although  the  lessor  could  not  maintain  tres- 
pass lor  injury  to  the  real  estate  in  cutting  the  timber,  he  could  maintain  trespass  de  bonis 


262 


WASTE. 


[CHAP.  XVIII. 


8.  Timber  trees  are  those  used  for  building,  and  the  question  is  one 
of  load  'asage.{a)  Thus,  where  hirch  trees  were  used  in  a  certain  county 
for  buildings  of  a  mean  kind,  it  was  held  waste  to  fell  them.  So  horse- 
chesnuts  and  pines.  But  it  is  also  v/aste,  to  cut  those  standing  in  de- 
fence of  a  house,  though  not  timber,  as,  for  instance,  willows,  beech, 
maple,  &c.,  or  to  cut  trees  for  fuel,  where  there  is  sufficient  dead  wood ; 
or  to  stub  up  a  quickset  thorn  fence.  So  it  is  waste,  to  lop  timber 
trees,  and  thereby  cause  them  to  decay ;  or  to  destroy  or  stub  up  the 
young  gerrnins  or  shoots;  or  to  cut  down  fruit  trees  growing  in  the 
garden  or  orchard;  but  not  those  growing  elsewhere.(l) 

9.  It  is  said,  in  places  where  timber  is  scant,  it  may  be  waste  to  cut 
such  trees,  as  are  not  commonly  reckoned  to  be  timber.  On  the  other 
hand,  upon  a  similar  principle,  it  has  been  held  not  to  be  waste,  in 
Massachusetts,  to  cut  oaks  for  firewood,  these  trees  being  very  abund- 
ant, and  commonly  used  for  this  purpose.  But  it  is  waste,  to  cut  tim- 
ber-trees and  exchange  them  for  firewood,  especially  if  the  latter  might 
be  otherwise  obtained.(2)  So,  in  a  bill  against  a  tenant,  for  waste  of 
timber,  it  is  no  justification,  that  firewood  and  timber  were  furnished 
by  him  for  the  farm,  from  other  premises;  but,  in  account  decreed 
against  him  for  such  waste,  he  may  be  allowed  in  mitigation  for  what 
he  so  furnished.  So,  where  a  condition  in  a  lease  is,  that  the  tenant 
shall  not  cut  off  wood  and  timber,  except  for  firewood  and  fencing, 
and  he  cuts  off  timber  for  other  purposes,  he  cannot  escape  forfeiture, 
by  showing  that  he  has  not  cut  off  more  than  would  have  sufficed  for 
his  firewood  and  fencing  timber,  and  that  he  obtained  the  latter  from 
other  laud  :(o)  nor  can  he  set  up  as  a  defence,  that  he  has  farmed  the  land 
more  beneficiall}^  than  the  lease  required. (4)  And,  where  trees  are  cut 
for  no  purpose  connected  with  the  immediate  improvement  of  the  land, 
and  sold  off  the  land,  without  intending  to  apply  the  proceeds  to  such 
improvement,  waste  is  always  committed,  and  the  defendant  has  no 
right  to  recoiqje  for  improvements  which  he  might  have  made  at  some 
other  time.(5)  So,  in  North  Carolina,  though  a  tenant  for  life  of  land 
entirely  wild  may  clear  as  much  of  it  ior  cultivation  as  a  prudent 
owner  of  the  fee  would,  and  sell  the  timber  that  grew  on  that  part  of 


(1)  Pyer,  65  a;  Co.  Lit.  53  a;  Cumberlatid's 
case,  Moore,  812;  Jackson  r.  Brownson,  7 
Jolin.  234;  Cliaudos  v.  Talbot,  2  P.  Wms. 
606  ;  Rex  v.  Mincliin,   3  Burr.  1308. 

(2)  Padelford  v.  P;tdelford,  7  Pick.  152; 
Richardson  V.  York,  2  Siiepl.  216;  Sarles  v. 


Sarles,  3  Sandf.  Ch.  601 ;  Simpson  v.  Bovvden, 
33  Maine,  549 ;  Greber  v.  Kleckner,  2  Barr, 
209. 

(3)  Clark  v.  Cummings,  5  Barb.  339. 

(4)  Ballitt  V.  Musgrave,  3  Gill,  31. 

(5)  Ibid. 


asportatis  for  carrying  away  the  wood,  after  it  had  been  severed.  Schermerhorn  v.  Buell,  4 
Denio,  422. 

While  the  general  rules  relating  to  waste  are  controlled  by  previous  formal  agreements 
of  the  parties,  tiie  reversioner  cannot  claim  a  forfeiture,  if  he  has  assented  to  the  act  either 
before  or  after  it  was  committed.     Clemence  v.  Steere,  1  R.  I.  272. 

So,  the  receipt  of  rent,  after  the  tenant  has  incurred  a  forfeiture  by  cutting  timber,  is  a 
waiver  of  the  forfeiture.     Camp  v.  Pulver,  5  Barb.  91. 

(a)  So,  where  it  is  the  custom  of  husbandry  in  the  vicinity  to  sell  off  hay  from  farms,  it  is 
not  waste  to  do  so.  But  the  removal  of  bog  grass  from  a  farm,  where  it  has  usually  been 
foddered  on  the  farm,  is  waste.     Sarles  v.  Sarles,  3  Sandf  Ch.  601. 

The  question  of  waste  is  said  to  depend  on  the  custom  of  furmer.s,  the  condition  of  the 
land,  the  demands  of  good  husbandry,  the  situation  of  the  country,  and  the  value  of  the 
timber.     McCuUougli  v.  Irvine,  1  Ilarr.  438  ;   Moreiiouse  v.  Cotheal,  2  N.  J.  521. 

Cutting  hoop-poles  is  waste,  unless  tliis  is  the  ordinary  mode  of  managing  the  farm.  Cle- 
mence V.  Steere,  1  R.  I.  272. 


CHAP.  XVIir.]  WASTE.  263 

the  land,  yet  it  is  waste  to  cut  down  valuable  trees,  not  for  the  pur- 
pose of  improving  the  land,  but  for  the  purpose  of  sal(j.(l) 

10.  With  regard  to  the  cutting  down  of  tifl>ber,  in  several  of 
the  States,  (supra,  s.  2,)  the, strict  rules  of  the  English  Liw  are 
not  adopted.  Thus,  in  Massachusetts,  (Statutes .  of  1854,  72,  78,) 
where  a  widow,  there  being  no  issue,  elects  to  take  half  the  real 
estate,  consisting  of  wild  or  woodland,  she  may  clear  and  improve 
it.  In  Vermont, («)  New  York,  and  Ohio,  if  the  land  is  wholly  wild 
and  uncultivated,  the  tenant  may  clear  a  part  of  it  for  cultivation, 
leaving,  however,  enough  for  the  permanent  use  of  the  farm,  which  is 
a  point  of  fact  for  the  jury;  and  consistently  with  good  husbandry. 
So,  in  North  Carolina,  the  tenant  may  clear  sufficient  land  to  furnish 
support  for  his  family;  and  a  dowress  may  cut  timber  to  make  into 
staves  and  shingles,  if  this  is  the  common  and  only  beneficial  use  of 
the  land.  So,  in  New  Hampshire,  the  consumjition  of  necessary  fuel 
at  the  residence  of  the  widow,  cut  from  the  dower-land,  she  not  resid- 
ing thereon,  is  not  waste.  So,  in  Maine,  it  is  not  waste  to  cut  wood 
for  necessary  fuel  and  repairs.  So,  in  Pennsylvania, (6)  Virginia  and 
Tennessee,  tenants  in  dower  have  been  allowed  to  clear  wild  lands,  not 
exceeding  (in  the  former  State)  a  just  proportion  of  the  whole  tract. 
It  has  already  been  stated,  that  in  several  of  the  States  a  widow  is 
not  dowable  of  wild  lands,  for  the  reason  that  they  would  be  of  no 
benefit  to  her,  as  the  clearing  of  them  would  be  waste.(2)  (See  ch.  9, 
s.  12.) 

11.  In  Tennessee,  the  lessee  of  a  mine,  with  liberty  to  smelt  ore, 
may  cut  timber  sufficient  for  this  purpose.  And  a  widow  may  cut 
timber  on  one  part  of  the  land  to  fence  another,  though  the  reversions 
of  the  respective  parcels  belong  to  different  heirs.  Her  rights  are  not 
to  be  affected  by  any  arrangement  among  thii-d  persons,  to  which  she  is 
not  a  party.     This  last  point  has  also  been  decided  in  Massachusetts.(8) 

12.  In  relation  to  bm/di>igs,  waste  may  be  committed,  either  by  pull- 
ing them  down,  or  suffering  them  to  remain  uncovered,  whereby  the 
timbers  rot.  But,  unless  they  do  rot,  these  acts  do  not  constitute  waste. 
If  uncovered  before  lie  came  in,  the  tenant  does  not  commit  waste  by 
suffering  them  to  fall ;  but  he  has  no  right  to  pull  them  down.  If  he 
have  done  or  suffered  waste,  but  repaired  before  action  brought,  this  is 
a  good  defence,  but  must  be  pleaded  specially,  not  proved  "under  the 
plea  "  quod  non  fecit  vastvm.''\'i) 

(1)  Davis  V.  Gilliam,  5  Ired.  Eq.  308.  [  Hickman  v.  Irvine,  3  Dana,  123  ;  26  Wend. 

(2)  Walk-.  Intro.   278;  Jackson  v.  Brown-    115;   Me.   Rev.   St.  393;   Allen  v.  MeCov,  8 
son.  7  John.  227  ;   Parkins  v.  Coxe,  2  Hayw.  I  Ohio,  418  ;  Cliilds  v.  Smitli.  1  Md.  Cii.  483. 
339;    Ballentine  v.   Poyner,   2  Hayw.   110;  I      (3)  Wilson  v.  Smith,   5  Yerg.  379:   Owen 
Hastings  v.  Orunckleton,  3  Yeates.  261;  N.    v.  Hyde,  6,  334;  Padelford  v.  Padellbrd,  7 
H.  Rev.  St.  329;    Pur.  Dig.  221 ;  Findlay  v.  j  Pick"  152.     See  infra,  sec.  20. 

Smith,  6  Munf.   134;  Crouch  v.  Puryear,  11      (4)  Co.  Lit.  53  a,  and  n   3. 
Rand.  258;    Owen  v.  Hyde,  6  Yerg.  334 ;  I 


{a)  In  this  State,  it  is  laid  down  generally,  that  cntting  wood  to  fit  the  land  for  cultivation 
is  not  waste,  if  pood  husbandry  require  it,  and  tlie  inheritance  be  not  injured;  even  though 
the  timlier  be  sold  and  consumed  elsewhere.     Hough  v.  Birgo,  11  Verm.  190. 

{h)  In  this  State,  the  court  remark  upon  the  distinction  between  tlie  condition  of  things 
in  England,  where  "every  part  of  every  tree  will  bring  cash,"  and  in  the  United  States, 
where  lands  are  in  great  measure  valueless,  till  cleared  ;  and  they  come  to  the  conclusion, 
that,  if  a  prudent  owner  would  clear  off  the  timber,  and  if  such  clearing  raises  the  value  of 
the  land,  it  is  no  waste.     Giveos  v.  McCalmont,  4  Watts,  463  ;  Owen  v.  Hyde,  6  Yerg.  334. 


264 


WASTE. 


[CHAP,  xvrii 


13.  The  right  to  cut  timber  for  repairs  does  not  depend  upon  the 
obligation  to  repair.  Thus,  if  a  house  be  ruinous  when  leased,  the 
tenant  may,  though  he  is  not  bound  to,  cut  timber  for  repairs.  So, 
even  where  the  lessor  has  cov^enanted  to  repair,  or  where  the  lease  is 
without  impeachment  of  waste,  for  the  house  ouly.(l) 

14.  Lord  Coke  says,  it  is  waste  to  build  a  new  house,  (meaning, 
probably,  ivith  timber  cut  upon  the  land ;)  and  to  suffer  it  to  be  wasted  is 
a  new  waste.  And,  if  the  tenant  suffer  the  house  to  be  wasted,  and 
then  fell  timber  to  repair  it,  this  is  double  waste.(2)     (See  sec.  .'  7.) 

15.  It  is  waste  to  convert  a  dwelling-house  into  a  store  or  ware- 
house, because  the  safety  and  permanency  of  the  building  are  thereby 
endangered.  So,  to  convert  two  chambers  into  one,  or  the  converse  ; 
or  a  hand-mill  into  a  horse-mill.(3) 

16.  It  is  waste  to  pull  down  a  house,  though  a  new  one  be  built,  if 
the  latter  is  smaller  than  the  former.  Otherwise,  if  the  former  house 
fall  down,  and  a  smaller  one  is  built.  To  build  a  larger  one,  in  this 
case,  with  timber  from  the  land,  is  waste.  But  not  to  abate  a  new 
house,  which  has  never  been  covered.(4)  The  removal  of  a  building 
erected  by  the  tenant,  and  not  affixed  to  the  freehold,  is  not  waste,  nor 
tearing  down  a  barn  so  dilapidated  that  there  is  danger  of  its  falling 
upon  the  cattle.(5)  ISTor  the  erection  of  a  new  outhouse,  with  timber 
from  the  farm,  in  place  of  one  which  had  become  ruinous.(6) 

17.  It  is  waste  to  reuiove  anything  attached  to  the  premises,  either 
by  the  lessor  or  the  lessee,  unless  removable  upon  the  principles  of  the 
law  of  fixtures,  which  have  been  already  explained. (7)     {Supra,  ch.  1.) 

18.  It  is  said,  with  particular  reference  to  the  alteration  of  buildings, 
that  the  strictness  of  the  law  in  relation  to  waste  has  been  carried  to  an 
unwarrantable  extent;  and  that  the  cases  are  very  discordant.  In  a 
modern  cas?  in  England,  the  opening  of  a  new  door  in  a  building  was 
held  to  be  no  waste,  unless  it  impaired  the  evidence  of  title.  In  a 
recent  case  in  this  country,  where  the  lessee  of  "  a  store  and  cellar" 
raised  the  store  from  one  to  two  feet,  and  finished  off  a  victualing  cellar, 
for  which  purpose  the  cellar  had  never  before  been  used  ;  held,  this,  of 
itselfj  would  be  waste,  but,  as  the  lessor  had  covenanted  that  the  lessee 
might  "  repair,  alter,  and  improve,"  this  was  a  permission  to  make  the 
alterations.(8) 

19.  At  common  law,  a  tenant  for  life  was  not  liable  for  loss  by  fire, 
whether  accidental  or  negligent.  But  such  loss  was  held  to  be  waste, 
under  the  Statute  of  Gloucester.  A  later  statute,  however,  6  Anne,  c. 
31,  ss.  6,  7,  exempts  all  tenants  from  liability  for  accidental  fire,  unless 
it  arises  from  some  contract  with  the  landlord. (a)    A  general  covenant  to 


a)  Co.  Lit.  54  b. 

(2)  Co.  Lit.  53  a,  b. 

(3)  Dou^'lass  V.  Wiggins,  1  John.  Cli.  435  ; 
Co.  Lit.  53  a,  n.  3. 

(4)  Bro.  Abr.  Waste,  93;    Co.  Lit.  53    a 
and  D.  4. 


(5)  Clemence  v.  Steere,  1  R.  I.  272. 

(6)  Sarles  v.  Sarles,  3  Sandf.  Ch.  601. 

(7)  Co.  Lit.  53  a. 

(8)  Young  V.  Spencer,  10  Barn.  &  Cr.  145 ; 
Hasty  V.  Wheeler,  3  Fair£  436-7  ;  Doe  v. 
Jones,  4  Barn.  &  Ad.  126. 


(a)  A  testator  devised  to  A,  for  life,  a  house  and  other  real  estate,  "  he  comraittin<r  no 
manner  of  was'te,  and  keeping  the  premises  in  good  and  tenantable  repair."  In  Jalv,  1837, 
A  entered  into  possession,  and  in  November,  1844,  the  house  was  totally  destroyed  liy  an 
accidental  fire.  In  1845,  A  was  found  lunatic  by  inquisition,  and  the  lunacy  was  dated 
from  the  1st  of  October,  1843.     Upon  petition  in  lunacy  of  the  remainder-men,  who  were 


CHAP.  XVIII.] 


WASTK. 


repair  biiuLs  the  teiuint  to  rebuild  in  case  of  fire.     Hence,  it  has  be- 
come usual  speciaily  to  except  such  loss.(l)     (See  supra  ch.  17.) 

20.  It  is  waste  to  dig  for  clay,  gravel,  lime,  stotie,  &c'.,  except  for  re- 
pairs or  maiuirance.  So  also  to  open  a  new  mine  (unless  in  case  ot  a 
lease  of  all  mines  in  the  land)  or  clay-pit;  but  not  to  jvjjrk'one  already 
opened,  or  to  open  new  pits  or  shalts  for  working  the  old  veins;  be- 
cause the}'  could  not  otherwise  be  wrought.(a)  If  mines  are  expressly 
included  in  the  lease,  and  there  are  open  ones,  these  oidy  are  embraced. 
But  if  there  are  no  open  ones  those  unopened  will  pa?s.(2)(i) 

22.  Where  certain  salt-woi'ks  were  devised  for  life,  suliject  to  the 
pa^'ment  of  large  legacies:  held,  the  devisees  might,  to  any  extent,  use 
the  salt,  and  the  woodland  used  by  the  testator  lor  fuel,  iu  carrying  on 
the  woiks.(3) 

22.  But,  it  is  said,  the  tenant  cannot  take  timber,  to  use  even  in 
mines  that  are  open.(4) 

2o.  Anciently,  the  conversion  of  one  kind  of  land  into  another ^{c)  as, 
for  instance,  of  pasture  into  arable,  was  waste,  because  it  not  only 
changed  the  course  of  husbandry,  but  tended  to  obscure  the  title. 
But,  it  has  been  said,  that  the  pasture  must  have  been  such  imme- 
morially,  and  not  merely  long  before;  and,  in  the  improved  state  of 
agriculture  in  modern  times,  the  old  rule  may  be  considered  as  greatly 
relaxed,  if  not  wholly  obsolete.  Thus,  converting  meadows  into  pasture 
is  not  waste,  unless  detrimental  to  the  inheritance,  or  contrary  to  the 
ordinary  course  of  good  husbandry.  So,  a  tenant  does  not  commit 
waste,  by  opening  a  way  over  meadow-land,  for  his  convenience,  dig- 
ging drains  by  the  side  thereof,  and  carrying  on  earth  for  the  purpose 
of  making  the  way  passable;  or  by  erecting  houses  on  such  land, 
where  there  were  none  before,  and  digging  cellars  for  them,  and  raising 
the  ground  about  them;  or  by  carrying  quantities  of  earth  upon  the 
low  and  wet  parts  of  such  laud  ;  if  the  occasional  breaking  up  of 
land  is  a  judicious  and  suitable  mode  of  cultivating  it,  the  cost  of 
levelling   small,  and   if,    after   deducting   such    cost,   the   land    over 


(1)  1  Cruise,  137  ;  Cliesterlield  v.  Bolton,  2 
Com.  R.  G'2G;  Piisteur  v.  Jones,  Cam.  &  Nor. 
194;  Bullock  v.  Dommitt,  6  T.  R.  651:  1 
Bibb,  536.  See  Cornish  v.  Strutton,  8  B. 
Mon.  586. 

(2)  Co  Lit.  53  b,  54  b ;  Paunders'  case,  5  Rep. 
12.    See  Vvliittield  v.  Bewit,  2  P.  Wms.  240; 


Raine  v.  Alderson,  4  Bing.  K  R.  702  ;  U.  S. 
V.  Gear,  3  How.  120;  Furrand  v.  Wilson,  4 
Hare,  388  ;  Ovvings  v.  Emery,  6  Gill,  260. 

(3)  Findlay  v.  Smith,  6  Munf.  134.     (See 
supra,  sec.  11.) 

(4)  Co.  Lit.  53  b,  n.  1. 


also  committees  of  the  person  and  estate;  held,  the  lunatic's  estate  was  liable,  under  the 
terms  of  the  condition,  to  reinstate  the  house;  and  a  reference  was  directed,  as  to  what 
amount  oufrht  to  bo  e.vpendod  in  rebuilding,  and  out  of  what  fund  the  expense  should  be 
paid,  with  liberty  to  the  next  of  kin  to  take  a  case  to  law,  upon  the  construction  of  the  con- 
dition.    Skingley,  3  Eng.  Law  and  Eq.  91. 

(a)  Whether  this  can  be  done  after  they  have  been  abandoned,  qu.  See  Yiuer  v. 
Vaughan,  2  Beav.  466. 

IJb)  Where  certain  land  was  held  by  copyhold  tenure,  and,  from  time  to  time  before  the 
tenant  came  in  possession,  there  being  no  proof  at  what  periods,  large  masses  of  stone  fell 
from  cliH's  above,  and  had  become  partially  imbedded;  held,  they  belonged  to  the  lord,  with 
the  soil,  and  the  copyholder  had  no  right  to  remove  them.  Dearden  v.  Evans,  5  Mees.  & 
W.  11. 

(c)  The  impoverishment  of  fields,  by  constant  tillage  from  year  to  year,  is  waste.  Sarles 
vSarles.  3  Sandf  Ch.  601. 

So,  sufleriiig  pastures  to  be  overgrown  with  brush,  where  it  would  not  be  suflered  by  a 
man  of  ordinary  prudence.     Cleinence  v.  Steere,  1  K,  L  272. 


266  WASTE.  [CHAP.  XVIII. 

which  the  way  was  ma-le,  and  on  which  the  houses  were  built, 
would,  in  case  of  their  removal,  be  equally  (or  more)  valuable  for  agri- 
cultural purposes,  including  ploughing  and  laying  it  down  to  grass,  as 
if  it  had  not  thus  been  changed  and  built  upon.  But  where,  in  the 
creation  of  the  estate,  there  was  an  express  prohibition  against  plough- 
ing land  unfit  to  be  ploughed,  Chancery  will  interpose  by  injunction  to 
prevent  it.(l) 

21.  If  a  tenant,  by  an  act  of  good  husbandry,  produces  consequences 
of  injury  which  could  not  reasonabl}'  be  foreseen,  he  shall  not  be  held 
guilty  of  waste.  Thus,  where  a  tenant  diverted  a  creek  into  a  swamp, 
whereby  the  trees  were  killed,  and  the  lessor  lay  by  twenty  years, 
during  which  a  new  and  better  growth  sprung  up  ;  held,  no  forfeiture 
of  the  lease  for  waste.(2) 

25.  It  is  waste,  in  England,  to  detroy  heir-looms ;  as,  for  instance,  to 
destroy  so  many  deer,  fish,  &c.,  as  not  to  leave  enough  for  the  stores.(3) 

26.  Permissive  waste  consists  chiefly  in  suffering  buildings  to  decay. 
But,  if  they  were  ruinous  when  leased,  the  tenant  is  not  bound  to  re- 
pair, though  justified  in  cutting  timber  for  that  purpose,  because  the 
law  favors  the  maintenance  of  houses.(a)  And,  in  Massachusetts,  he 
may  cut  timber  trees,  and  sell  them  to  procure  boards  for  repairs,  if 
this  course  be  economical  and  beneficial  to  the  estate.(4) 

27.  Chancery  will  not  decree  that  a  tenant  for  life  repair,  nor  appoint 
a  receiver  for  that  purpose;  for  this  would  be  productive  of  harassing 
suits  and  expensive  depositious.(o) 

28.  If  a  tenant  covenants  to  repair,  and  does  not,  waste  will  not 
lie.(6) 

29.  It  has  been  held  in  South  Carolina,  that  a  tenant  for  life  is  lia- 
ble for  one-fourth  the  expense  of  repairs,  to  be  estimated  by  commis- 
sioners.(7) 

30.  For  waste  caused  by  act  of  God,  or  enemies,  the  tenant  is  not  in 
general  responsible,  as  where  a  house  falls  by  a  tempest.  But,  if  merely 
unroofed,  he  is  bound  to  re-cover  it  before  the  timbers  rot.  So,  it  is  not 
waste  to  remove  timber  thrown  down  upon  pasture  land  by  a  tem})est, 
especially  where  it  is  valueless.  And,  where  the  timber  is  of  value,  if 
its  prostration  upon  pasture  land  prevents  the  full  enjojnnent  of  the 
life  estate,  the  tenant  should  be  permitted  to  remove  it  upon  such  terms 
as  may  be  deemed  by  the  court  equitable.(8) 

31.  Where  the  bank  of  a  river,  or  a  wall  of  the  sea,  is  destroyed  by 
a  sudden  flood,  the  tenant  is  not  liable.  Otherwise,  where  the  current 
is  so  moderate  that  he  might  by  due  diligence  preserve  the  bank,  or 
where  the  injury  happens  by  the  ordinary  flowing  and  reflowinof  of  the 
tide.(9) 

(1)  Co.  Lit.  53  b  ;  Dyer,  37  a;  Gunnin<r  v.  \  (4)  Co.  Lit.  53  a,  54  b ;  Loomis  v.  "Wilbur, 
Gunning,  2  Show.  8;  1  Swilt,  517-8  :  Keep-;  5  Mas.  13. 

ers,  &c.  V.  Alderton,  2  Bos.  &  P  86;  Wor.sley  ':      (5)  Wood  v.  Gaynon,  Amb.  395. 
V.  Stewart.  4  Bro.   Pari.  (Ja.  377  ;  Clemence  j      (6)  Co.  Lit.  54  b,  n.  1. 
V.  Steere,  1   R.  I.    272  ;  Pynchon  v.  Stearns.  [      (7)  Sniitli  v.  Poyas,  2  Des.  65. 
II  Met.  304.  '  I      rS)  2    Rolle's    Abr.    820;    Co.    Lit.   53  a; 

(2}  Jackson  v.  Andrew,  18  John.  431.  Houghton  v.  Cooper,  6  B.  Mon,  231. 

(3)  Co.  Lit.  53  a.  |      (9)  Co.  Lit.  53  b;    Dyer,  33  a;  Griffith's 

'  ca.se,  Moo.  69. 

(a)  But  it  is  waste  to  tear  them  down,  and  he  is  liable  even  if  torn  down  after  he  leaves 
them  and  without  his  consent.     Clemence  v.  Steere,  1  R.  I.  272. 


CHAP.  XVIII.] 


WASTE. 


26f. 


82.  It  seems,  waste  may  be  of  so  small  value,  as  not  to  be  a  ])roper 
subjeet  of  legal  inquisition.  But  Lord  Coke  sajs,  trees  to  the  value  of 
tliree  shillings  and  four  pence  hath  been  adjudged  waste,  and  many 
things  together  m;iy  make  waste  to  a  value.  It  is  said,  it  ought  to  be 
to  the  value  of  40d  at  least.(r)  ,- 

'So.  Where  the  lessee  of  a  meadow,  containing  three  lots,  ploughed 
it  into  a  garden,  and  built  upon  it,  and  a  verdict  was  rendered  against 
him  for  three  farthings  damage,  one  farthing  for  each  lot;  judgment 
was  given  for  the  delendant.(2)(«) 

84,  With  respect  to  the  persons  who  arc  liable  for  the  commission 
of  waste,  there  seems  to  be  no  little  confusion  in  the  books.  Lord  Coke 
says,  that  at  common  law  a  tenant  for  life  was  y\o\>  prohibited  from  waste, 
unless  expressly  restrained  from  committing  it.  Mr.  Cruise  limits  this 
remark  to  the  case  where  lands  were  grauttd  to  a  person  for  life,  and 
assigns  as  the  reason,  that  the  grantor  had  power  to  impose  such  terms 
as  he  thought  proper.  Chancellor  Kent  says,  that,  at  common  law,  a 
inohihition  against  waste  would  lie  only  against  a  tenant  holding  by  act 
of  law.  It  is  said,  the  Register  contains  five  several  writs  of  wasre  ;  two 
at  the  common  law,-  for  waste  done  by  a  dowress  or  a  guardian  ;  and 
three  by  statute,  fon*' waste  done  by  tenant  for  life,  for  years,  and  by  the 
curtesy!  But  it  is  added,  some  have  thought  that,  at  common  law,  waste 
did  not  lie  against  tenant  by  the  curtesy.  In  Connecticut,  it  is  held 
that,  at  common  law,  waste  would  lie  only  against  a  dowress,  guardian, 
or  tenant  by  the  curtesy.  In  Delaware,  tenant  by  the  curtesy,  or  in 
dower,  is  expressly  made  liable  for  waste.  But  Lord  Coke  says,  waste 
does  not  lie  against  a  guardian  in  socage. (3)(Z>) 

Zb.  Two  early  English  statutes  made  provision  for  the  punishment 
of  waste  committed  by  auy  tenauts  for  lile  or  for  years.  Statute  of  Marl- 
bridge,  52  Hen,  III.,  c,  2-1,  authorized  the  action  of  waste,  and  gave 
full  damages;  and  the  Statute  of  Gloucester,  6  Edw.  I.,  c,  5,  extended 
the  penalty  to  a  forfeiture  of  the  place  wasted,  and  treble  damages  (4) 

36,  Ecclesiastical  persons,  bishops,  parsons,  &c,,  seized  of  landsy^^re 
ecdesice,  although  having  a  fee-simple  qualified,  are  placed,  in  respect  to 
waste,  under  the  restrictions  of  tenants  for  life.  They  may  cut  timber 
or  dig  stone  i'ur  repairs  of  the  church  or  parsonage,  or  sell  them  to  raise 
money  for  this  purpose;  but,  for  anything  beyond  this,  they  are  liable, 
in  England,  to  a  writ  of  prohibition,  or  ecclesiastical  censure,  or  in- 
junction in  Chancery,  and  to  the  last  named  process  in  the  United 
States,(o) 


(1)  Co.  Lit.  53  a;  lb.  n.  10. 

(2)  2  Bos.  &  P.  86. 

(3)  1  Cruise,  123 ;  4  Kent,  77.  79,  81  ;  Co. 
Lit.  54  a,  nnd  n.  11  ;  1  Swift.  519;  Jeffer.'^on 
t'.  Durham,  1  Bos.  &  P.  120-1 ;  Seolt  v.  Lenox. 
2  Brock-.  57  ;  Dehi.  Rev.  Sts.  293. 


(4)  3  Bl.  Coram.  14.  By  St.  3  &  4  Wm.  4, 
eh.  27,  the  writ  of  waste  is  abolisiicd. 

(5)  Hich.  Liford's  case,  1 1  Rep.  49  a ;  Stock- 
man v.  "Whitlicr.  Rolle's  R  86;  Acl<laiid  v. 
Atwell,  2  Rolle's  Abr.  813  ;  Stracliy  v.  Fran- 
cis, 2  Atk.  217.  But  see  Jeflerson  v.  Dur- 
ham, 1  B.  &  P,  105. 


(a)  Where  a  man  is  found  puilt y  of  waste  as  to  part  of  the  premises  on  which  he  is  cliarofed, 
it  amounts  to  a  verdict  of  acquittal  as  to  the  residue.     Morehouse  v.  Cotiieal,  2  N.  J.  521. 

The  verdict  in  an  action  of  waste  is  pood,  if  it  do  not  specify  tlie  exact  extent  of  the 
premises  wasted.  A  mere  designation  of  each  place  wasted,  wliere  there  are  sever*!,  will 
not  be  sufficient.     lb. 

(b)  At  common  law,  a  guardian,  by  committing  waste,  forfeited  bis  trust;  a  widow  had 
a  keeper  set  over  her,     2  Inst.  300. 


268  WASTE.  [CHAP.  XVIII. 

S7.  So,  also,  an  injunction  lies  against  the  widow  of  a  deceased  rec- 
tor, and  an  action  on  the  case  against  one  who  has  resigned,  or  the  rep- 
resentatives of  one  deceased,  by  tlie  successor,  for  dilapidations,  or  even 
a  neglect  to  repair.(l)(a) 

3<.  In  Maryland,  if  the  rector  commit  waste,  he  forfeits  treble  dam- 
ages to  the  vestry. (2) 

39.  Chancellor  Kent  observes,  that  the  provisions  of  the  Statute  of 
Gloucester  may  be  considered  as  imported  by  our  ancestors,  with  the 
whole  body  of  the  common  and  statute  law  then  existing,  and  appli- 
cable to  our  local  circumstances.  It  has  been  expressly  re-enacted  in 
New  Jersey,  New  York(/;)  and  Virginia,  and  adopted  in  North  Caro- 
lina, Pennsylvania,  Maryland,  Massachusetts  and  probably  other  States. 
In  Pennsylvania,  a  recent  statute  provides,  that  the  tenant,  in  case  of 
permissive  waste,  shall,  before  <lecree  of  forfeiture,  be  directed  to  repair ; 
in  default  of  which  he  forfeits  the  place,  with  treble  damages.(3) 

40.  In  Ohio,  a  tenant  in  dower,  for  voluntary  or  permissive  waste, 
forfeits  the  place  wasted,  but  the  statute  does  not  give  treble  damages. 
Tenant  by  the  curtesy  does  not  forfeit.  In  Dehiware,  the  action  of 
waste  is  limited  to  three  years.  It  lies  for  waste  committed  without 
written  license.(4) 

41.  In  Massachusetts,(c)  Maine  and  Michigan,  the  penalty  is,  in 
general,  forfeiture,  with  damages.(5)  But  in  Massachusetts,  a"^  tenant, 
against  whom  an  action  is  pending  for  recovery  of  land,  and  who  com- 
mits waste  thereon,  is  liable  to  treble  damages.(cZ)  In  Maine,  the  Stat- 
ute of  Grloucester  has  been  held  not  to  be  in  force,  nor  does  the  action 
of  waste  lie  against  a  dowress.  Perhaps,  for  actual  waste,  an  action  on 
the  case  would  lie.     Tenant  by  the  curtesy  is  liable  for  waste.(6) 


(1)  Hoskins  v.  Featlierstone,  2  Bro.  552; 
Jones?;.  Hill.  Carih  224;  Jones  v.  Hill,  3  Lev. 
268  ;   Radclifie  v.  D'Oyly,  2  T.  R.  630. 

(2)  2  Md.  L.  426. 

(3)  4  Kent,  80-1  ;  1  N.  J.  L.  209  ;  1  Virg. 
227;  1  N.  C.  Rev.  St.  609 ;  Bright  v.  Wilson, 
Cam.  &  N    26  ;    Carver  v.  Miller,    4    Mass. 


663 ;     White    v.    Wagner,    4    Harr.    &    J.  >  Rev.  St.  567. 


391;    Padelford  v.  Padelford,   7  Pick.   152; 
Sacketti;.Saekett.  8,  309,  Penn.St.  1840,217. 

(4)  2  Cha.se,  1316;  Walk   Intro.  326,  329; 
Dela.  Rev.  Sts.  441,  293.     See  3   Harring.  9. 

(5)  Mass.  Rev.  St  630.    See  St.  1841,  187  ; 
Mich.  Rev.  St.  265  ;  Mo.  lb.  393. 

(6)  Smith  I'.  Follausbee,  13  Maine,  273;  Me. 


(a)  Wliero  a  rector  was  cutting  down  timber  on  the  glebe  lands,  and  had  sold  some,  and 
applied  the  money  for  necessary  repairs  of  the  rectory  and  other  houses  on  the  lands,  he 
was  restrained,  at  the  suit  of  tlie  patron  of  the  rectory,  from  cutting  any  timber,  except  to 
be  used  for  the  purpose  of  repairs,  and  from  selling  or  disposing  of  any  timber  then  or  here- 
after to  be  cut.     The  Duke  of  Marlborough  v.  St.  Jolin,  10  Kng.  Law  &  Kq.  146. 

It  seem.s,  it  is  only  by  way  of  indulgence,  under  special  circumstances,  as,  for  instance, 
where  there  is  timber  on  an  outlying  part  of  the  glebe,  so  far  distant  as  to  make  it  not 
worth  while  to  bring  the  timber  to  the  place  where  repairs  are  to  be  done,  liiat  a  rector 
would  be  allowed  to  sell  timber,  even  for  tiie  purpo.se  of  defraying  the  expense  of  neces- 
sary repairs  with  the  proceeds.     lb. 

(&)  Chancellor  Kent  say.s,  (4  Comm.  81,  n.  a,)  the  writ  of  toaste,  as  a  real  action,  is  there 
essentially  abolished  ;   but  an  acHon  of  waste  substituted,  with  the  same  penalty. 

(c)  Whether,  in  Massachusetts,  the  English  law  of  forfeiture,  with  treble  damages,  was 
ever  in  force,  see  3  Dane,  ch.  78.  art.  11,  sec.  2  ;  art,  13,  sees.  .3.  4,  5  ;  art.  14 ;  Jackson,  340  ; 
Padelford  v.  Padellbrd,  7  Pick.  152;  Sackett  v.  Sackett,  8,  309. 

(d)  But  such  damages  can  be  recovered  only  in  the  manner  provided  by  the  statute. 
They  cannot  be  made  an  item  of  charge  by  a  mortgagor  agaiiist  a  raortgajree,  in  an  account 
stated  between  them  by  a  master,  upon  a  bill  to  redeem.     Boston,  &c.  v.  King,  2  Cush.  400. 

The  provision  of  the  Revised  Statutes,  giving  damages  for  waste,  to  be  recovered  in  a 
real  action  for  the  land  itself,  supersedes  the  common  law  remedy;  and  the  claim  need  not 
be  specificallj  set  forth.     Raymond  v.  Andrews,  6  Cush.  265. 


CHAP.  XVIIL] 


WASTF, 


269 


42.  In  Rhode  Island,  the  action  of  -waste  is  still  in  use  for  recovery 
of  the  freehold  estate  wasted.(l) 

43.  In  Indiana, (2)  a  widow  forfeits  the  place  wasted  to  the  immediate 
reversioner  or  remainderman.  But,  for  vcr/Iir/eni  waste,  she  is  merely 
liable  in  damages.  A  statute  requires  her  to  keep  the  esta,te  in  rc-pair. 
In  New  Hampshire  and  Vermont,  a  widow  is  made  IkWe  to  an  action, 
for  strip  or  waste  done  or  suffered.  In  Maryland,  at  the  suit  of  a  de- 
visee or  his  guardian.  In  Wisconsin,  a  widow  is  required  not  to  do 
or  suffer  waste,  and  to  keep  the  pn-mises  in  repair,  and  is  liable  to  dam- 
ages to  the  next  owner  of  the  inheritance,  for  breach  of  this  require- 
ment. So,  in  general,  a  remainder-man  may  sue  for  waste  by  a  particular 
tenant.(3) 

44.  In  Illinois,(3)  a  widow  forfeits  to  tlie  immediate  reversioner,  having 
a  freehold  or  inheritance,  where  she  Avantonly  or  designedly  commits 
or  suffers  waste.  But,  for  negligent  or  inadvertent  waste,  the  claim  is 
for  damages  only.  In  both  cases,  the  remedy  is  an  action  of  waste. 
If  she  marry  again,  the  husband  is  liable  with  her  for  waste  done  03' 
her  before,  or  by  him  after  marriage. 

45.  In  Connecticut,  until  a  recent  period,  there  was  no  statute 
against  waste  by  a  tenant  for  years,  and,  it  is  said,  few  actions  of  waste 
are  brought.  A  tenant  for  life,  holding  by  act  of  2)arti/,  might  commit 
waste  or  authorize  another  to  do  it,  without  incurring  any  liability. 
But,  by  a  late  act,  all  particular  tenants  lor  life  or  for  years,  though 
holding  by  act  of  part}',  are  forbidtlen  to  commit  waste,  with  a  saving 
of  vested  rights.  The  Statutes  of  Marlbridge,  and  of  Gloucester,  are 
not  in  force;  but  the  provisions  of  the  former  are  adopted  as  to  tenants 
in  dower  and  by  the  curtes}-,  upon  the  ground  of  general  reasonable- 
ness.(5)(a) 

46.  In  Kentuck3',(6)  the  Statute  of  Mar]bri<lge  is  re-enacted — "  farm- 
ers shall  not  make  waste,  nor  sale,  nor  exile  of  house,  woods  and 
men,"  &c.,  without  license.  For  such  waste,  the}'-  shall  yield  full  dam- 
ages, and  be  punished  by  amercemerit  grievovsly.  But  a  subsequent 
chapter  of  the  Revised  Laws  j)rovides  an  action  of  waste,  giving  for- 
feiture and  treble  damages,  according  to  the  Statute  of  Gloucester.  It 
has  been  held,  that  a  reversioner  cannot  recover  the  land  from  a  tenant 
in  dower,  for  waste,  by  ejectment. 

47.  Only  the  immediate  reversioner  in  fee,  of  an  estate  for  life,  can 
maintain  an  action  of  waste.  Hence,  during  the  continuance  of  an  in- 
termediate life-estate  between  such  reversioner  and  the  part}'  who  com- 
mits waste,  the  lattt-r  is  not  liable,  and,  if  he  die  before  the  intermediate 
tenant,  the  action  is  forever  gone.  In  New  York,  this  rule  has  l)een 
changed  by  statute;  but  the  reversioner  recoveis,  without  prejudice  to 
the  intervening  estate.    In  North  Carolina,  an  action  lies  at  the  instance 


(1)  Loomia  v.  Wilbur,  5  Mas.  13. 

(2)  Iiid.  Rev.  L  210-11. 

(3)  1  Verm.  L.  159;  N.  II.  L.  189;  Verm. 
Rev.  St.  291;  Md.  L.  407  ;  Wi.sc.  Rev.  St. 
335;  ch.  62,  sec.  37. 

(4)  Illin.  Rev.  1...  237,  625. 


(5)  1  Swift.  89.  519;  Moore  v.  Ellisworth, 
3  Conn.  487  ;  Crocker  v.  Fox,  1  Root.  323; 
Ro.'^o  V.  Hayes,  lb.  244;  Conn.  St.  June  G, 
1840,  p.  28. 

(6)  2  Ky.  Rev.  L.  1530;  Robin.sou  v.  Mil- 
ler, 2  B.  Monr.  287. 


(a)  Where  a  widow  suflfers  the  estate  assigned  for  her  dower  to  need  repairs,  the  court 
will  order  it  into  possession  of  the  next  ovvuer,  for  a  sufiScient  time  to  majte  the  repairs, 
uuless  she  gives  security.     Conn.  Sts.  189. 


270 


WASTE. 


[CHAP.  XVIII. 


of  him  in  vjhom  the  rigid  is,  against  all  tenants  committing  the  waste. 
In  Penns3lvania,  a  trustee  in  fee  of  the  legal  estate  may  maintain  an 
action  of  waste  against  an  equitable  tenant  for  life.(l) 

48.  Tenant  for  life  is  liable  to  an  actioi;,  for  vraste  committed  by 
him,  though  he  have  since  assigned  his  estate.(2) 

49.  Lord  Coke  says,  that  an  heir  cannot  have  an  action  of  waste  for 
waste  done  in  the  life  of  his  ancestor,  nor  a  parson,  Sac.,  in  the  time  of 
the  predecessor.  So  if  tenant  for  years,  having  committed  waste,  die, 
an  action  of  waste  does  not  lie  against  the  executor,  &c.  But  in  Vir- 
ginia, Kentucky,  North  Carolina,  Delaware,  Wisconsin,  New  Jersey, 
New  York,  Michigan,  Maine  and  Massachusetts,  statutes  provide,  that 
the  heir  may  sue  for  waste  done  in  the  time  of  his  ancestor.(a)  And 
in  Massachusetts,  Maine  and  Michigan,  an  action  for  waste  survives 
against  executors,  &c.(3) 

50.  In  order  to  sustain  the  action  of  waste,  the  reversion  must  con- 
tinue in  the  same  state  as  when  the  waste  was  done  ;  for,  if  the  rever- 
sioner grant  it  awaj^,  or  lease  it  for  years,  unless  it  be  "m  futmo,^^  the 
waste  is  dispunishable,  even  though  he  take  the  whole  estate'  back 
again.  The  same  effect  is  produced,  though  he  grant  the  reversion  to 
the  use  of  himself  and  his  wife  and  of  his  heirs.  The  action  of  waste 
consists  in  privity. (4:) 

51.  If  tenant  by  the  curtesy  or  tenant  in  dower  assign  his  or  her 
estate,  and  waste  be  done  bj''  the  assignee,  the  heir  may  have  an  action 
of  waste  against  either  of  such  tenants,  and  recover  the  land  from  the 
assignee.  In  New  York,  it  is  provided,  that  the  action  may  be  brought 
against  the  assignee.  In  Delaware,  the  assignee  of  a  tenant  is  liable. 
And,  if  the  heir  have  also  assigned,  the  action  lies  in  favor  of  his  as- 
signee, against  the  assignee  of  the  tenant,  because  the  privity  is  de- 
stroyed. In  other  cases,  the  action  shall  be  brought  against  him  who 
did  the  waste,  for  it  is  in  nature  of  a  trespass.(5) 

52.  If  a  tenant,  after  assignment,  continue  to  take  the  profits,  he  is 
liable  for  waste.(6)(i) 

53.  Lord  Coke  saj^s,  a  wife,  holding  an  estate  by  survivorship,  shall 
be  punished  for  waste  done  by  the  husband  in  his  life,  if  she  agree  to 
the  estate,  though  there  hath  been  variety  of  opinions  in  our  books. 


(1)  Co.  Lit.  53  b,  218  b,  n.  2 ;  Paget's  ease, 
5  Rep.  76  b;  Bray  v.  Tracv,  Cro.  Jac.  688;  1 
N.  T.  Rev.  St.  750  ;  1  N.  C.  do.  609  ;  Wood- 
man t;.  Good,  6  M.&  vS.  169. 

(2)  1  Cruise,  90. 

(3)  Mass.  Rev.  St.  030  ;  1  Virg.  Rev.  C. 
277  ;  2  Ky.  Rev.  L.  1530-1  ;  1  N.  C.  Rev.  St, 
610  ;   1  N.  J.  R.  C.209  ;   2  N.  Y.  R.  S.  334; 


Mich.  Rev.  St.  496-7  ;   Me.  lb.  568  ;  Dela. 
lb.  293. 

(4)  Co.  Lit.  53  b,  54  n. 

(5)  Co.  Lit.  54  a;  Bates  v.  Shraeder,  13 
John.  260  ;  2  N.  Y.  R.  St.  334;  Dela.  Rev.  Si.- 
293. 

(6)  Co.  Lit.  54  a;  1  Vir.  R.  C.  277:  1  K 
J.  do  209-10;  2  Ky.  R.  L.  1530-1 ;  1  N.  C. 
Rev.  St.  009. 


(a)  A  ftmesole  claimed  certain  land  by  virtue  of  a  location  thereof,  made  to  her  by  the  pro- 
prietors; and,  after  her  intermarriage  with  A,  he  entered  upon  the  land,  under  the  location, 
and  continued  in  possession  thereof,  after  her  decease,  as  tenant  hj  the  curtesy.  Her  heirs 
conveyed  their  reversionary  interest  to  B,  who  sued  A  in  an  actien  of  waste.  Held,  A  could 
not  defeat  the  action,  by  showing  that  the  location  of  the  land  was  so  defective,  that  it 
would  not  bar  the  proprietors,  nor  persons  claiming  under  them  ;  but  tliat  he  was  estopped 
to  deny  the  title  under  which  he  entered.     Morgan  v.  Larned,  10  Met.  50. 

[h]  in  Massachusetts,  it  is  held,  that  neither  an  action  of  waste,  nor  an  action  on  the  case 
in  the  nature  of  waste,  lies  in  I'avor  of  an  assignee  of  tlie  reversion  against  a  tenant  iu  dower, 
for  waste  done  by  her  assignee.     Foot  v.  Dickinson,  2  Met.  611. 


CHAP,  xvrir.]  WASTF.  271 

54.  But  an  action  of  waste  docs  not  lie  against  the  husband  of  a 
woman,  tenant  for  life,  after  her  death — the  former  having  comniiltcd 
waste  during  her  life;  for  he  was  seiz'.'d  only  in  her  right,  and  she  was 
tenant  of  the  freehold.  Otherwise,  if  she  was  tenant  lor  years,  because 
the  term  vested  in  him.  So,  ihe  assignee  of  the  estate  of  ^hc  husband 
is  liable  for  waste,  because  his  seizin  and  possession  apo-several,  and  he 
is  strictly  a  tenant  for  the  life  of  the  husband. (l)(a) 

55.  If  tenant  for  life  assign  on  condition,  and  the  grantee  do  waste, 
and  the  former  re-enter  for  condition  broken  ;  the  action  of  waste  lies 
against  tiie  grantee,  and  the  place  shall  be  recovered. (2) 

56.  Although  the  statute  of  Marlbridge  prohibits  only /cw?7?e;-s  from 
committing  waste,  yet  a  tenant  is  responsible  for  the  waste,  by  whom- 
soever done,  the  law  regarding  him  as  having  power  to  prevent  it, 
while  the  landlord  has  no  such  power,  not  being  on  the  land.  The 
reversioner  looks  to  the  tenant,  and  he  has  a  claim  over,  in  trespass, 
against  the  wrong  doer  himself.  Only  the  act  of  God,  of  the  public 
enemy,  or  of  the  lessor  himself,  will  excuse  the  lessee.  lie  is  like  a 
common  carrier.(3) 

57.  Lord  Coke  says,  even  an  infant,  and  laro7i  and  feme^  shall  be 
punished  for  waste  done  by  a  stranger.  But,  although  the  reversioner 
may  hold  the  tenant  liable  for  waste  done  by  a  stranger,  he  nnay  also, 
at  his  election,  bring  an  action  on  the  case  against  such  stranger,  for 
any  injury  in  its  nature  permanent — as,  for  instance,  digging  up  the 
soil.     The  action  of  waste  lies  against  a  lessee  only. (4) 

58.  The  action  of  estrepement  or  waste  is  said  to  be  in  great  degree 
superseded  by  an  action  on  the  case  in  nature  of  waste,  which  has  the 
advantage  of  being  maintainable  by  any  other  reversioner,  as  well  as 
the  owner  in  fee.  The  measure  of  damages  is  the  injui-y  to  the  inheri- 
tance. The  llevised  Statutes  of  MassachusettSj  Maine  and  Michigan,  pro- 
vide this  remedy,  at  the  election  of  the  party  injured.  In  Maine,  the 
demandant  in  a  writ  of  entry  may  recover  for  waste  in  such  action.(5) 

59.  It  is  said  that,  except  under  special  circumstances,  there  is  no 
remedy  ^ov  permissive  waste,  after  the  tenant's  death,  either  in  law  or 
equity.  It  has  also  been  held,  that  the  action  on  the  case  would  not 
lie  for  permissive  waste.     But  this  decision  has  been  doubted. (6) 

60.  Chancery  will  interpose,  hy  inji(nction,{b)  to  prevent  waste  or  re- 


(1)  Co.  Lit,  54  a  ;  Davis  v.  Gilliam,  5  Ired. 
Equ.  308. 

(2)  lb. 

(3)  1  Cruiso,  ]24;  4  Kent,  77;  Wliito  v. 
AVa<rner,  4  Har.  &  J.  373. 


Randall  v.  Cleaveland,  C  Conn.    328.     (See 
Wilford  V.  Rose.  2  Root,  20.) 

(5)  1  Cruise,  124;  4  Kent,  81.  (See  6  Conn. 
328;)  Mass.  Hov.  St.  G30;  Mich.  Rev.  St.  496; 
Me.  lb.  610-11,  5G8. 


(4)  Co.  Lit.  54  a;  Ross  v.  Gill,  4  Call,  252  ;        (G)  Turner  v.  Buck,  22  Yin.  523  ;  4  Kent, 

'  78. 


(a)  A,  and  B  his  wife,  being  seized  for  their  joint  lives  and  that  of  the  survivor,  C  took 
A's  estate,  and,  livinp;  A,  permitted  waste.  A  havintr  died,  hold,  B  could  not  have  an  action 
on  the  case  a<;aiiist  C.  Bacon  v.  Smith,  1  Ad.  &  Kll.  (N.  S.)345.  Actions  for  waste  may  bo 
brought  by,  as  well  as  ajrainst,  liu.sbatid  and  wife.  In  an  action  of  waste  hy  a  husband  and 
wife,  against  tiie  alienee  of  the  husliand's  interest  in  his  wife's  land,  the  declaration  alleged, 
that  the  reversion  in  fee  was  in  the  wile.  Held,  if  this  declaration  was  delective,  in  not 
alleging  that  tlie  reversion  was  in  the  husband  and  wife,  the  defect  was  cured,  after  verdict, 
by  the  statute  of  jeofails.     Dejarnatte  v.  Allen,  5  Gratt.  499. 

(b)  In  a  bill  for  waste,  a  single  clear  instance  of  waste,  committed  intentionally,  ig  suEB- 
cient  to  entitle  the  complainant  to  a  continuance  of  the  injunction,  and  to  a  decree  for  aa 
account.     Sarles  v.  Sarles,  3  Sandfl  Ch.  601. 


172 


WASTE. 


[CHAP.  XVIIT. 


quire  security  against  it,  upon  application  of  the  owner  in  fee,  notwith- 
standing there  is  an  intermediate  reversion.  So,  also,  upon  application 
of  a  remainder-man  for  life,  though  there  are  intermediate  limitations 
in  tail,  and  to  trustees  to  preserve  contingent  remainders;  because, 
although  the  plaintiff,  even  when  his  estate  vested,  would  have  no  in- 
terest in  the  timber,  yet  he  would  have  the  benefit  of  the  mast  and 
shade. 

61.  So  an  injunction  lies  by  the  landlord  against  a  sub-tenant,  or 
in  favor  of  an  unborn  child.  In  a  suit  against  a  tenant  for  life  and  her 
under-tenant,  where  a  decree  is  made  for  an  account  against  both ;  the 
piaster  may,  if  the  tenant  for  life  request  it,  ascertain  what  amount  shall 

be  made  up  to  her  by  the  under-tenant.(L) 

62.  Chancery  will  interpose  to  prevent  waste,  '^pendente  lite,^^  before 
any  act  committed,  if  a  party  manifests  his  intention,  and  asserts  a  right, 


(1)  1  Rolle  Abr.  377,  pi.  13;  Moor,  554; 
1  Hov.  on  Frauds.  226,  uh.  7  ;  Perrot  r.  Per- 
rot,  3  Atk.  94 ;  Worsley  v.  Stewart,  4  Bro. 
Pari.    Ca.  377  ;  Livingston   v.    Reynolds,    2 


Hill,  157  ;  Lang  worthy  v.  Chad  wick,  13  Conn. 
42.  See  Hilton  v.  Granville,  1  Cr.  &  Ph.  283  ; 
Sarles  v.  Sarles,  3  Sandf.  Ch.  607  ;  Briggs  v. 
Karl,  &c.,  8  Eng.  L.  &  Equ.  194. 


Where  there  is  a  privity  of  title  as  between  tenants  for  life,  or  years,  and  the  reversioner? 
it  is  not  necessary  to  show  irreparable  injury  or  destruction  to  the  estate.  George's,  &c.  v- 
Detmold,  1  Maryland  Ch.  Decis.  371. 

But,  as  between  strangers  or  parties  claiming  adversely,  both  in  trespass  and  waste,  the 
injury  must  be  shown  to  be  irreparable,     lb. 

The  mere  allegation,  that  the  defendant  is  selling  timber  of  the  complainant,  witliout  further 
averment  as  to  some  pecuHar  value  of  the  limber  for  some  particular  purpose,  lias  been 
held  not  sufficient  to  warrant  an  injunction.     Hatcher  v.  Hampton,  7  Geo.  49. 

It  is  not  necessary  for  a  landlord  to  prove  his  title  to  the  premises,  to  sustain  an  injunction 
against  his  tenant,  (or  cutting  and  carrying  away  timber.     Parker  v.  Raymond,  14  Mis.  535. 

Wliere  the  chief  object  is  an  injunction  against  future  waste,  it  is  of  purely  equitable  cog- 
nizance, and  the  court,  to  prevent  multiplicity  of  suits,  when  waste  lias  been  committed, 
will  direct  an  account  and  satisfaction  for  past  injuries.  lb.  Rodgers  v.  Rodgers,  11  Barb. 
595. 

A  bill  in  equity  was  filed  by  tenants  in  fee,  alleging  that  the  defendants,  confederating 
together,  entered  upon  their  land,  cut  down  large  quantities  of  wood,  quarried  large 
quantities  of  limestone,  are  continuing  to  cut  down  wood  and  quarry  stone,  and  design  to 
remove  the  same  ;  and  that  they  have  instituted  actions  of  trespass  gua7-e  clainumfregit 
for  tlie  said  acts,  whicii  are  now  depending ;  but  not  that  the  trespass  was  to  the  destruction 
of  the  inheritance,  or  the  mischief  irreparable,  nor  staling  such  facts,  as  would  show  tliat  the 
apprehension  of  further  acts  of  trespass  was  well  founded  ;  nor  charging  insolvency  in  tlie 
delendauts.  Held,  an  injunction  would  not  be  granted  upon  such  a  bill,  to  restrain  further 
acts  of  trespass  or  waste.     Hamilton  v.  Ely,  4  Gill,  34. 

A  l)ill  charged  with  particularity  that  A,  who  was  insolvent,  claimed  certain  lands,  as  the 
purcliaser,  at  an  irregular  sale  of  a  ta.x;  collector,  wliose  deed  he  had  ;  tliat  A  was  threaten- 
ing to  commit  trespasses  and  waste;  that  he  and  others,  acting  avowedly  under  his  autho- 
rity, were  making  preparations  with  a  view  to  their  commission  ;  that  the  com|ilainants 
had  been  disturf)ed  in  tiie  enjoyment  of  their  property,  and  were  likely  to  be  more  seriously 
interrupted  ;  and  liiat  they  were  tlius  prevented  from  making  tlie  profit  from  their  estate 
whicii  otiierwise  lliey  would.  Held,  Chancery  might  grant  an  injunction  to  stay  trespass 
and  waste,  and  mij^ht  remove  the  cloud  from  tiie  complainant's  title,  and  direct  the  cancella- 
tion of  the  deed,  especially  as  the  deed  in  form  vvas^;rma  facie  valid.  Lyon  v.  Hunt,  11 
Ala.  295. 

Instances  of  the  interference  of  Cliancery  for  the  purpose  of  enjoining  waste,  are  as  fol- 
lows. Where  a  mere  trespasser  digs  into  and  works  a  mine.  So  wliere  a  trespasser,  in  col- 
lusion with  the  tenant,  attempts  to  cut  timber.  So  where  there  is  a  dispute  concerning 
boundaries,  and  one  party  is  about  to  cut  ornamental  or  timber  trees.  So  where  one  in  pos- 
session under  articles  is  proceeding  to  cut  timber.  So  where  lessees  are  taking  from  a  man- 
or, bordering  on  the  sea,  stones  of  peculiar  value.  In  short,  in  all  cases  of  timber,  coals, 
ores  and  quarries,  where  the  party  is  a  mere  trespasser,  or  exceeds  his  limited  rights;  upon 
the  ground,  that  the  acts  are  or  may  be  an  irreparable  damage.  2  Story,  (Equ.)  244-5, 
sec.  929. 


CHAP.  XVIII.]  WASTE.  273 

to   commit  waste.(«)      So,  after  a  decree  for   the  sale  of  mortgaged 
property. 

ij'6.  The  Chancery  remedy  i^  liniite  i  to  cases,  in  which  the  title  is 
clear  and  undisputed. (I) 

64.  In  Rhode  Island,  a  writ  of  cslrcpemeut,  being  in  the  nature  of  an 
injunction,  it  seems,  may  be  issued  by  the  court  or  a  judge,  a'fter  notice 
to  the  adverse  party,  and  the  giving  of  a  bond  by  the  applicant.  In 
Delaware,  one  having  a  lien  upon  land  may  have  an  injunction  or 
Vfr'ii  of  estrepanent.  So  this  writ  lies,  ponding  an  ejectment.  In  Penn- 
sylvania, a  writ  lies  to  restrain  waste  by  tenant  for  lifc.(2) 

65.  In  Maryland, (/j)  provision  is  made  by  statute  for  the  interference 
of  Chancery  in  case  of  waste.  In  Virginia,  this  is  the  only  remedy. 
The  action  of  waste  is  never  brought.(3) 

6C).  In  New  Jersey, (4)  a  statute  provides  for  a  writ  of  waste  out  of 
Chancery,  against  a  tenant  for  life  or  other  term.  The  judgment  is  for- 
feiture, and  treble  damages. 

67.  In  Massachusetts,  equity  jurisdiction  of  waste  is  given  to  the 
Supreme  Court;  and  they  may  stay  waste  by  an  injunction. (c)  The 
same  process  is  provided  against  an  owner  of  land  who  commits,  or 
threatens  or  pref)ares  to  commit,  waste,  after  the  land  has  been  cUt'tched. 
A  similar  provision  in  Maine.  In  New  York,  the  Supreme  Court 
has  Chancery  jurisdiction  to  enjoin  against  waste,  where  it  is  actually 
commenced  or  threatened.  The  injunction  may  be  granted  against  one 
who  colludes  with  the  tenant  to  commit  waste.(5) 

68.  Although  an  owner  in  fee  cannot  sue  for  waste,  if  there  is  an 
intermediate  estate,  yet,  where  timber  is  cut  down  b\^  the  tenant,  the  pro- 

(1)  Gibson  v.  Smitli,  2  Atk.  182;   Kane  v.    547-8;  Dela  Rev.  Sts.  293;  Penn.  Sts.  1849, 


Vanderbnr<^li.  1  .Tolin.  Clia.  11  ;  Smith  v. 
Po}'as,  2  Dess.  66;  Storm  v.  Mann,  4  Jolm. 
Clia.  21  ;  Tessierv.  Wise,  3  Bland,  CO;  Wil- 
liams, lb.  215.  See  Stewart  v.  Cliew,  lb. 
441;  Miiplofk,  2,  461;  Hough  v.  Martin,  2 
Dev.  &  B.  379. 

(2)  R.  I.    St.  1836,   910;  Dela.    St.    1843, 


472. 

(3)  1  Md.X.  599  ;  Rob.  Prae.  560. 

(4)  1  N.  J.  L.  209. 

(5)  Mass.  Rev.  St.  631-2;  Me.  Rev.  St. 
569;  Wilbur  v.  Wilbur,  7  Met.  249;  Rod- 
gers  V.  Rodgers,  11  Barb.  595. 


(a)  In  Virginia  and  Kentucky,  if  a  tenant  commit  waste  after  a  suit  brought  against  him, 
the  siieriff'  shall  keep  the  land.  In  Maine  and  Massachusetts,  such  tenant  fortbits  treble 
damages.  In  New  Jersey,  the  court  will  not  grant  rules  to  stay  waste,  in  trespass  qu.  daus. 
1  Vir.  Rov.  C.  277  ;  1  Sinitli,  138 ;  Leeds  v.  Doughty,  6  Ilalst.  198  :  Mass.  Rev.  St.  630;  2 
Ky.  Rev.  L  1531.  Similar  provisions  in  New  York  to  those  in  Virginia,  &c.  ;  2  Rev.  St. 
336.     In  Wisjonsin.  waste  may  be  stayed  pending  a  suit.     Rev.  St.  581. 

Where  land  is  sold  on  execution,  the  purchaser  takes  possession,  and  such  land  is  re- 
deemed; the  owner  is  not  entitled  to  rent  or  damages  for  waste  before  the  redemption,  but 
is  entitled  to  rent  for  the  time  he  was  wrongfully  kept  out  of  possession  after  redemption. 
Kaniion  v.  Pillow,  7  Humph.  281. 

Where  a  party  claims  aright  to  land,  by  virtue  of  his  adverse  possession,  without  deed  or  an 
execution,  he  ma}-  maintain  an  action  of  waste,  or  trover,  or  an  action  on  the  case  in  the  nature 
of  waste,  against  the  execution  defendant,  lor  cutting  timber  during  the  fifteen  months  subse- 
quent to  the  sale,  while  he  remains  in  possession;  but  nut  trespass,  or  replevin  in  the  cepit. 
Rich  V.  Baker,  3  Denio,  79. 

{b)  It  is  no  objection  to  the  jurisdiction  of  the  Court  of  Chancery  of  Maryland,  to  stay 
waste  by  a  dowress,  that  the  remedy  should  be  sought  on  the  equity  side  of  the  county  court. 
Childs  V.  Smith,  1  Maryland  Ch.  Decis.  483. 

(c)  This  jurisdicticn  applies  only  to  c'lses  of  technical  waste ;  not  to  trespasses  which  a 
court  with  full  Chancery  powers  might  enjoin.  Attaquin  v.  Fish,  5  Met.  140.  So  in  Maine. 
The  jurisdiction  there  attaches,  only  where  there  is  privity  of  estate.  Leighton  v.  Leighton, 
32  Maine,  399. 

Vol.  I.  18 


27-i 


WASTE. 


[CHAP,  xviir. 


perty  in  it  vests  immediately  in  the  owner  of  the  inheritance  at  that 
time,  and  he  may  seize  or  maintain  trover  or  replevin  for  it,  or  compel 
an  account  of  its  proceeds,  if  sold.  The  tenant  has  an  interest  in  the 
timber  while  it  remains  standing — it  is  a  part  of  the  inheritance  ;  but 
this  interest  is  immediately  forfeited  by  the  wrongful  act  of  severing 
it.(l) 

69.  Land  was  conveyed  to  the  use  of  A,  for  life,  remainder  to  the 
use  of  his  first  and  other  sons  in  tail ;  remainder  to  B  for  life,  with  like 
remainder  to  his  sons.  B  has  a  son,  living  A,  who  had  none,  and  A 
severs  timber  from  the  land.  Held,  the  son  of  B  should  have  trover 
for  the  timber,  although  he  could  not  have  waste,  on  acount  of  the  in- 
termediate estates ;  and  the  chance  of  A's  having  a  son,  who  would 
take  the  inheritance  before  the  son  of  B,  was  a  mere  possibility,  liable 
to  be  defeated  by  a  feoliment  of  A,  and  which  did  not  interfere  with 
this  action.(2) 

70.  Where  there  are  intermediate  limitations  of  the  kind  above-men- 
tioned, and  the  immediate  owner  of  the  fee  brings  a  bill  in  Chancery, 
for  an  account  of  timber  cut  down  and  sold  ;  the  court  will  not  turn 
the  plaintiff  round  to  an  action  at  law,  the  case  being  one  which  pecu- 
liarly culls  for  a  discovery  ;  nor  will  it  order  the  money,  paid  into 
court,  to  be  put  out  for  the  benefit  of  unborn  heirs,  who  may  after- 
wards have  a  title  paramount  to  that  of  the  plaintifi'.(8) 

71.  The  same  rule  applies,  {anie^  sec.  68,)  where  the  timber  is  severed 
by  accident ;  as,  for  instance,  by  a  storm. (4) 

72.  But,  where  there  are  trustees  to  preserve  contingent  remainders, 
Chancery  will  not  allow  a  severance  of  the  timber,  by  collusion  be- 
tween the  tenant  and  the  immediate  owner  in  fee,  to  the  injury  of  un- 
born heirs.(5) 

73.  Nor  will  it  allow  a  tenant  for  life,  who  also  has  the  first  vested 
estate  of  inheritaiice,  to  take  advantage  of  his  own  wrong  in  commit- 
ting waste,  to  the  prejudice  of  intermediate  contingent  remainders, 
although  at  law  he  would  undoubtedl}^  have  power  to  do  it. 

74.  A  was  tenant  for  life,  remainder  to  his  first  and  other  sons  in 
tail,  remainder  to  B  for  life,  with  like  remainder  to  her  sons,  estates  to 
trustees  to  preserve,  &c.,  remainder  to  A  in  fee.  A  had  no  son  ;  B 
had  one,  who  died  very  young.  A  commits  waste,  after  which,  B  has 
another  son.  Held,  A  could  not  have  the  timber  cut  down  ;  nor  the 
administrator  of  B's  son,  deceased,  because  he  was  dead  at  the  time  the 
waste  was  done  ;  nor  the  other  son  of  B,  because  his  estate  was  liable 
to  be  defeated  by  A's  having  a  sou  ;(a)  and  therefore,  that  the  money 
received  for  the  timber  should  be  paid  into  court.(6) 

75.  This  having  been  done,  upon  the  subsequent  death  of  A,  and  a 
hearing  of  the  respective  parties  who  claimed  the  money,  viz.,  the  ad- 
ministrator of  B's  son,  B's  second  sou,  and  the  executor  of  A  ;  held. 


(1)  Mores  v.  Wait  3  Wend.  104;  Bulkley 
i;.  Dolbeare,  7  Conn.  232;  Bewick  v.  Whit- 
iielcj,  3  P.  Wms.  2G7  ;  Richardson  v.  York,  2 
Shepl.   216;   Railroad  v.  Kidd,  7  Dana,   250. 

(2)  Uvedale  v.  Uvedale,  2  Uolle  Abr.  119. 


(3)  Wliitfield  V.  Bewitt,  2  P.  Wms.  240  ; 
Lee  V.  ALston,  1  Bro.   Rep.  194;   lb.   3,  37. 

(4)  Newcastle  V  Vane,  2  P.  Wms.  241. 

(5)  1  Cruise,  128. 

(6)  Williams  V.  Duke  of  Boltoo,  3  P.  Wms. 
208. 


{a)  A  better  reason  seems  to  have  been, 
milted. 


that  he  was  born  after  the  waste  was  com- 


CHAP.  XVlir.]  "WASTE.  275 

that,  inasmuch  as  the  settlement  had  been  wrongfully  disturbed  by  A, 
the  money  should  be  restored  to  the  same  course  which  it  would  have 
followed  bad  no  such  act  been  done;  that  B  siiould  have  an  interest 
for  life,  remainders  in  tail,  and  a  reversion  in  A,  according  to  the  set- 
tlement.(l) 

76.  A  Court  of  Chancery  sometimes  orders  the  cutting-down  of  tim- 
ber, upon  land  held  by  a  tenant  for  life,  for  the  purpose  of  paying 
debts  and  legacies  charged  upon  the  inheritance. 

77.  Devise  to  the  testator's  wife  for  life,  remainder  to  A  in  fee,  on  condi- 
tion of  his  paying  legacies  at  certain  appointed  times;  in  default  of 
wliich  payment,  remainder  over.  A  filed  a  bill  in  equit}^,  averring 
his  desire  to  cut  timber  for  payment  of  the  legacies,  and  that  the  widow 
and  the  subsequent  remainder-man  connived  to  prevent  him,  in  order 
that  his  estate  might  be  forfeited  by  breach  of  condition,  although  he 
offered  indemnity  for  any  damage.  The  court  allowed  the  prayer, 
upon  his  making  satisfaction  for  breaking  the  ground,  &c.,  and  referred 
it  to  the  Master  to  determine  how  much  was  needed  for  the  object,  and 
which  part  of  the  timber  could  best  be  spared. (2) 

78.  So  also,  where  timber  is  decaying,  a  court  of  chancery  will  order 
it  to  be  cut,  for  the  benefit  of  a  remainder-man  in  tail,  or  a  remainder- 
man for  life,  without  impeachment  of  waste — especially  if  such  remain- 
der-man represents  himself  as  in  necessitous  circumstances.  And  the 
proceeds  shall  be  paid  over  to  him,  and  no  part  of  them  to  the  tenant. 
But  enough  timber  must  be  left  for  repairs  and  boles,  all  damages  com- 
pensated, and  the  act  done  under  direction  of  the  Master.  And  the 
right  shall  not  extend  to  trees  standing  for  defence  and  shelter  of  the 
house,  or  for  ornament.(3) 

79.  In  Maine  and  Massachussetts,  any  person,  seized  of  a  freehold, 
or  of  a  reversion  in  fee  or  in  tail,  in  wood-land,  may  petition  the  court 
to  have  the  wood  cut  and  sold,  and  the  proceeds  invested  for  the  bene- 
fit of  parties  interested.  If  the  property  is  likely  to  deteriorate,  the 
court  shall  grant  such  petition,  and  appoint  trustees  for  the  manao-e- 

•  nient  of  the  business.(4) 

SO.  Leases  for  life,  from  very  ancient  times,  have  usually  contained 
the  clause,  ^^  absque  impetitione  vasW^ — ivithout  impeachment  of  waste. 
And  it  seems  to  be  now  settled,  that  such  clause  not  only  authorizes 
the  tenant  to  cut  timber  without  incurring  the  statutory  penalty,  but 
vests  the  property  of  it  in  him,  when  cut  or  blown  down.  So,  also,  it 
entitles  him  to  the  materials  of  a  buUding  blown  down.  In  other  words 
it  gives  him,  in  this  respect,  the  rights  of  an  owner  in  fee.  But  if  the 
timber  is  cut  by  a  stranger,  it  belongs  to  thu  reversioner.(a) 

81.  The  words  "  without  impeachment  of  any  action  of  waste"  would 
merely  exempt  the  tenant  from  liabilit}j  to  suit.     The  phrase  "  with  full 

(1)  Powlett  V.  Ducl)os.s  of  Bolton,  3  Ves.  ,      (3)  Aspinwall  v.  Leigh,  2  Yern.  218;  Bo- 
jun.  374;   Williams  v.  Duke,  &c.,  1  Cox,  72;    wick  v.  Wliitfield,  3  P.  Wms.  267. 
(Uarev.  [Iopkin8,  2  Cox,  110.)  (4)  1    Smith's   St.    134;    Mass.    Rev.    St. 

(2)  Claxton  V.  Claxton,  2  Vern.  152.  |  80G-7. 

(rt)  Where  one  had  a  power  to  lease  without  impeachment  of  waste,  and  a  proviso  was 
inserted  in  a  lease  made  by  him,  that  the  lessee  should  pay  so  much  an  acre  for  ploughing 
pasture  or  using  the  land  contrary  to  the  covenants;  to  an  action  for  the  penalt}',  held,  it 
was  no  defence,  that  the  clause  iu  the  lease  amounted  to  a  license  to  commit  waste.  Briug- 
loe  V.  Goodson,  8  Scott,  71. 


27(3  WASTE.  [CHAP.  XYIir. 

liberty  to  commit  waste  "  is  sometimes  used.  And  voluntary  waste  is 
oiten  expressly  excepted;  in  which  case  it  has  been  held,  that  wilful 
waste  is  not  excased.  It  has  been  suggested  of  late,  that  the  exception 
applies  only  to  houses,  and  not  to  timber ;  but  a  late  case  has  decided, 
that  where  decaying  timber  is  cut  down  by  order  of  ourt,  this  clause 
entitles  the  tenant  only  to  the  interest  of  the  purchase-money.  So, 
where  there  is  a  remainder-man  for  life  without  impeachment  of  waste, 
timber  cut  during  a  prior  estate  vests,  not  in  him,  but  in  the  owner  of 
the  fee.(l) 

82,  A  lessee  for  years,  holding  under  tenant  for  life  without  impeach- 
ment of  waste,  may  lawfully  commit  waste.  But  the  tenant  for  life 
cannot  transfer  his  power,  so  that  it  may  be  exercised  after  his  own 
death  ;  nor,  where  his  estate  is  in  remainder,  subject  to  a  prior  life 
estate,  without  the  power,  will  any  agreement  between  the  two  tenants 
for  life  be  sustained,  for  committing  waste  before  the  former  estate  ter- 
minates,(2) 

88.  A  tenant  for  life,  without  impeachment  of  waste,  is  not  permitted 
to  commit  malicious  waste,  to  the  destruction  of  the  estate.  Tliis  is 
sometimes  called  equitihh  vxtste ;  and  a  court  of  chancery  will  not  only 
prevent  it  by  injunction,  but  compel  restitution  after  it  is  coiumitted.(tt) 


(1)  4  Kent,  77;  Co.  Lit.  220  a;  Lewis 
Bowle.s'  case,  1  Rep.  82  b ;  Bulkley  v.  Dol- 
beare,  7  Conn.  232  ;  Pyne  v.  Dor,  IT.  R.  55  ; 
Aston  V.  Aston,  I  Yes.  265;  1  Cruise,  1;!1  ; 
"Wiekham  v.  Wickhain,  19  Vcs.  419;  Pi^ot 
V.  Bullock,  1  Ves.  jun.  479.     See  Tollemache 


V.  Tollemache,  1  Hare,  45G  ;   Briggs  v.   Earl, 
&c.,  8  Knar.  L.  k  Equ.  194. 

1 2)  Bray  v.  Tracy,  W.  Jones,  51 ;  1  Cruise, 
133  ;  Robinson  v.  Litton,  3  Atk.  210;  Garth 
V.  Cotton,  756. 


(a)  The  power  is  considered  inequitable,  and  therefore  Chancery  controls  it;  but  still  with 
reference  to  the  presumed  intent  of  the  pariy  creating  it.  Marker  v.  Marker,  4  Eng.  L.  & 
Equ.  95. 

Relief  is  granted,  where  a  tenant  cuts  down  timber,  for  the  sake  of  the  profit  to  be  derived 
from  a  i-ale.  upon  tlie  same  principles  on  wliicli  an  injunction  is  granted  to  stay  what  is 
called  eqwitablt  vja.ite.     Kidd  v.  Deniiison,  6  Barb.  9. 

Wliere  the  whole  of  a  farm  when  leased  for  a  rent,  is  in  a  wild  and  unsettled  state,  with 
the  exception  of  a  few  acres,  the  parties  will  be  held  to  have  intended  that  the  lessee  should 
be  at  liberty  to  fell  part  of  the  timber,  in  order  to  fit  the  land  for  cultivation  ;  but  this  riiiht 
will  not  authorize  the  lessee  to  destroy  all  the  limber,  and  tliereby  irreparably  injure  the 
premises,  or  permanently  diminish  their  value;  nor  to  cut  trees  tor  the  profit  to  be  derived 
from  a  sale;  nor.  just  before  the  expiration  of  liis  lease,  to  cut  down  timber,  upon  the  pre- 
text of  gradually  clearing  up  the  land  and  f)reparing  it  for  cultivation.     I'o. 

So,  where  a  widow  has  dower  assigned  to  her  in  land,  the  reversion  of  which  is  divided 
among  several,  she  has  in  fieneral,  a  discretionary  right  to  get  wood  for  repairs,  firewood, 
&c.,  from  what  pari  o!  the  land  she  pleases;  but.  it  seems,  that,  in  an  extreme  case,  when 
she  acts  out  of  nure  caprice  and  partiality,  with  a  view  to  favor  one  at  the  expense  of  the 
other,  equity  might  interfere.     Dallon  v.  Dalton,  7  Ired.  Eq.  197. 

Tenant  for  lite,  dispunishable  for  waste,  had  power  to  lease  for  21  years,  certain  ancient 
pasture  lands,  whii-h  she  afterwards,  bi  fore  any  lease,  had  converted  into  garden  allotments 
in  a  manner  auKiuntiiig  to  waste.  The  leasing  power  provided  against  "an}'  tine,  premium, 
or  foregifi  being  taken  for  the  making  thereof;"  .and  that  "none  of  llie  lessees  should  be, 
by  any  clau-^e,  or  words  therein  contained,  authorized  to  commit  wa.'^te,  or  exempted  from 
punishment  lor  wahte."  In  a  lease  reciting  this  power,  the  tenant  for  life  demised,  Decem- 
ber 13th,  1845,  for  21  years  Irom  the  1st  of  July  last,  reserving  a  rent  payable  half-yearly, 
January  1st,  and  July  1st,  1846.  The  lessee  covenanted  not  to  break  up  any  of  the  pasture 
latid  demised,  "except  lur  the  purpose  of  c'anying  out  the  allotment  system  "  introduced  liy 
the  tenant  tor  life.  Held,  such  reservation  of  rent  did  not  amount  to  a  fine,  premium,  or 
foregifi.  Hopkmson  v.  l-Viraud,  G  I'^ng.  L.  &  ICq.  404;  also,  that  the  exception  in  the  cove- 
n  Hit  did  not  amount  to  a  license  or  a  iihorily  to  the  lessee,  to  commit  waste  by  carrying  out 
t;ie  allotment  .system  ;  and,  if  any  implication  could  be  made  so  as  to  construe  that  exception, 
as  imply II  g  a  permis.-iou  by  the  lessee  to  do  anything,  it  could  not  be  infi-rred  that  it  permit- 
t.'d  hi  n  to  do  more  than  to  cairj'  oiu  the  allotment  system  during  the  life  of  the  tenant  for  life, 
60  far  as  she  had  power  to  permit  it,  and  not  otherwise,     lb. 


CHAP.  XVIII.] 


WASTE. 


277 


84.  A,  upon  the  marriage  of  his  son,  settled  an  estate  upon  liini.seir 
for  life,  without  impeachment  of  waste,  remainder  to  the  son  for  life, 
&c.  Afterwards,  having  taken  a  dislike  to  his  son,  A  eauscd  the  house 
to  l)c  injured,  by  tearing  oti"  ii.xtuies  of  various  kinds,  to  the  value  of 
£o,OuO.  The  court  ordered  an  injunction,  an<l  also  that  the  damage 
be  repaired. (1) 

85.  Chancery  will  also  restrain  such  tenant  from  cutting  down  tim- 
ber, serving  for  shelter  or  ornament  to  a  mansion-house,  or  not  (it  to  be 
rdled — such  as  young  saplings,  or  trees  standing  in  lines,  avenues,  or 
ridings  in  the  park,  wdiether  planted  or  natural. (a) 

80.  But,  if  such  waste  has  been  actually  connnitted,  Chancery  will 
not  decree  satisfaction  for  it  to  the  remainder-man. (2) 

87.  The  clause  "without  irn})eachmcnt  of  waste"  does  not  justify 
what  the  law  terms  double  waste.il))  Therefore,  where  an  estate  ibr  life, 
\vith  this  right,  is  devised  to  be  sold,  the  proceeds  to  be  invested  in 
other  land,  to  be  settled  in  the  same  way  ;  the  tenant  cannot  commit 
waste  on  the  former,  because  he  may  do  it  upon  the  latter,  and  thi.s 
would  be  double  waste.(3) 

88.  Where  a  limited  power  to  commit  w^aste  is  annexed  to  an  estate 
for  life,  the  tenant  will  be  restrained  from  exceeding  such  power;  but 
it  will  be  liberally  construed. 

89.  Devise  to  one  for  life,  with  power  to  cut  down  such  trees  as  four 
persons  named  should  alltjw.  These  persons  having  died ;  held,  the 
power  remained,  and  the  Court  of  Chancery  would  regulate  its  exer- 
cise, and  refer  to  the  ]\Iaster  the  question  what  trees  could  properly  be 
cut.(4) 

90.  A,  having  by  will  devised  land  to  his  wife  for  life,  made  this 
codicil — "whereas  by  my  will  my  wife  cannot  cut  any  timber — now, 
during  widowhood  she  may  cut  timber  for  her  own  use  and  benefit  at 
seasonable  times,"  &c.  Held,  the  wife  was  not  restricted  to  the  cutting 
of  timber  for  her  own  use  or  for  estovers^  but  might  cut  any  kind  of 
timber,  though  not  saplings  or  sticks  fit  only  for  paling.(5) 

91.  While  a  lease  may  contain  clauses  authorizing  the  commission 
of  waste ;  it  may  on  the  other  hand  contain  covenants  on  the  part  of 
the  lessee  against  it.  Thus,  if  a  lessee  covenants  not  to  cut,  destroy,  or 
take  oflf  more  wo(;d,  &c.,  than  is  actually  used  on  the  farm,  and  to  make 


(1)  Vane  V.  Ld.  Barnard,  2  Vern.  738. 
See  Kidd  v.  Denuison,  6  Burb.  9. 

(2)  Downsliire  v.  Sandys,  6  Ves.  108; 
Paekinpton  v.  Puckinpton,  3  Atk.  215;  As- 
ton V.  Aston,  1  Ves.  2G4 ;  O'Brien  v.  O'Brien, 
Ainb.  107  ;  THmworth  v.  Ferrers,  6  Ves.  419  ; 
Day  V.  Merry,  16  Ves.  375 ;  llolt  v.  Somer- 


ville,  2  Abr.   Eq.  759 ;  Couselt  v.  Bell,  1  Y. 
&  Coll.  Cha.  569. 

(3)  Plymouth  v.   Archer.  1   Bro.  R.   159; 
Burgea  v.  Lamb,  16  Ves.  174. 

(4)  Hewitt  V.  Hewitt,  Arab.  508  ;  Hewett 
V.  Hewett.  2  Eden,  332. 

(5)  t;i)amberlyne   v.   Dunimer,    1    Bro.   R. 
166;  Chamberlyae  v.  Dummer,  3,  549. 


(a)  Several  persons,  entitled  successively  to  life  estates  limited  in  strict  settlement,  became 
bankrupt,  and  their  assignees  cut  down  timber  left  for  ornament  and  shelter.  Upon  a  hill 
filed  on  t)ehalf  of  A.  the  then  first  tenant  in  tail  in  existence,  who  was  an  iiiDmt,  the 
assiprnees  were  ordered  to  bring  the  money  into  court,  which,  with  the  accumulations, 
amounted  to  £'26,133  2s.  lO'i.  Two  of  the  tenants  for  life  died  without  issue;  A  attained 
twenty-one,  and,  being  still  the  first  tenant  in  tail,  and  entitled  to  the  first  estate  of  inherit- 
ance, presented  a  petition  fur  payment  to  him  of  the  fund  and  the  accumulations,  which 
were  ordered  to  be  translerrcd  to  liim.     Lushington  v.  Buldero,  8  Eng.  Law  and  Eq.  265. 

(6)  This  phrase  is  sometimes  used  in  a  different  sense.     Sec.  14. 


278  ESTATE  AT  WILL  [CHAP.  XIX 

no  waste,  sale  or  destruction ;  it  ^Yill  be  waste  for  him  to  cut  wood  to 
be  used  in  burning  bricks  for  sale.(l) 

92.  In  most  of  tlie  States,  special  provision  is  made  by  statute  against 
wanton  injuries  to  land,  buildings,  trees,  &c.,  by  persons  without  title  ; 
and,  more  particularly  in  the  Western  States,  against  the  act  of  firing 
woods  and  prairies,  belonging  either  to  the  party  himself,  or  to  an- 
other. 


CHATTER    XIX. 

ESTATE  AT  "WILL  AND  AT  SUFFEEANCE. 

1.  Estate  at  ■will — definitioD.  i        6.  How  terminated. 

2.  Incidents.  18.  Notice  to  quit,  and  summary  process 

3.  Estate  from  year  to  year — notice  to  to  eject. 

quit.  22.  Estate  at  will — how  affected   by  the 

5.  Estate   at    will — whether   assignable,  statute  of  frauds. 

&c.  I      27.  Tenant  at  svfftrance. 

1.  An  estate  at  ivill^  is  where  one  man  lets  land  to  another,  to  hold 
at  the  will  of  the  lessor.(2)(a) 

(1)  Livingston  v.  Eeynolds,  26  Wend.  115.  |  (2)  Lit.  s.  68 ;  4  Kent,  109. 


(a)  In  Iowa,  (Code,  1851,  ch.  78,  sec.  1208,)  possession  of  a  tenant  is  presumed  to  be  at 
will. 

An  estate  at  the  will  of  the  lessee  is  at  the  will  of  the  lessor  also ;  and  vice  versa.  Cheever 
V.  Pearson,  16  Pick.  271 :  1  Cruise,  190.  See  1  Gill  &  J.  360.  The  ricfht  to  enter  upon, 
use  and  possess  the  land  of  one,  at  the  pleasure  of  another,  is  a  lease  at  will,  even  though 
no  rent  is  reserved,  if  the  case  shows  some  other  adequate  consideration.  Cheever  v.  Pear- 
son, 16  Pick.  271.  So  it  is  said,  one  placed  on  the  land  without  any  terms  prescribed  or 
rent  reserved,  and  as  a  mere  occupier,  is  strictly  a  tenant  at  will.  4  Kent,  112.  A  occupied 
land  of  B,  under  an  agreement  to  pay  rent;  but  neither  the  amount  of  it,  nor  the  time  of 
occupation,  was  agreed  upon.  B  having  notified  A  to  quit  immediately,  which  he  did;  held, 
an  action  for  use  and  occupation  would  lie,  without  demandf  Spaulding  v,  M'Osker, 
7  Met.  8. 

A  lease  made  by  an  agent  in  his  own  name  being  void,  a  tenant  entering  under  such  a 
lease  is  a  tenant  at  will,  and  as  such  is  entitled  to  notice  to  quit  before  ejectment  will  lie 
against  him.     Murray  v.  Armstrong,  11  Mis.  209. 

A  parol  agreement  that  one  party  should  enter  on  the  land  of  the  other,  dig  ore,  erect 
buildings,  &c.,  and  pay  fifty  cents  a  ton  for  all  ore  removed,  amounts  to  a  lease;  but  its 
duration  is  to  be  determined  by  the  jury,  who  are  to  say  whether,  upon  all  the  evidence,  it 
was  at  will,  or  from  year  to  year,  under  the  instructions  of  the  court  as  to  what  constituted 
a  lease  for  a  year,  and  what  a  tenancy  at  will,     Mooner  v.  Miller,  8  Barr,  272. 

A  joined  his  fence  to  B's  in  several  places,  part  of  B's  fence  being  on  A's  land,  and  the 
fence  so  joined  was  permitted  to  stand  for  seven  years;  then  B,  without  notice  to  A,  threw 
down  the  fence.  Held,  in  an  action  of  trespass,  that  A  was  to  be  considered  as  tenant,  and 
entitled  to  notice  after  so  long  an  acquiescence,  and  that  B  had  no  right  to  enter  upon  A's 
land,  or  from  his  own  land  to  throw  down  A's  fence.     Shean  v.  Withers,  12  B,  Mon.  441. 

A  person  entering  and  holding  land  under  an  agreement  to  buy  it,  is  at  least  a  tenant  at 
will,     Jones  v.  Jones,  2  Rich.  542. 

So,  in  case  of  occupancy  under  an  agreement  for  a  future  sale  or  lease,  the  occupant  is 
tenant  at  will;  his  riglit  is  deleated  by  demand  of  possession,  and  his  estate  ceases.,  in 
North  Carolina,  after  tliree  weeks'  notice.  If  he  disclaims  the  owner's  title,  this  is  a  forfeit- 
ure, and  no  notice  is  necessarj*.     Love  v.  Edmondson,  1  Ired.  152. 

A  parish  voted  that  A,  B  and  others,  have  liberty  to  erect  a  seminary-house  on  the  par- 


CHAP.  XIX.]  AND  AT  SUFFERANCE.  279. 

2.  At  common  law,  sucli  estate  wns  at  the  will  of  both  parties,  but 
neither  could  determine  it  wantonly  and  to  the  injury  of  the  other. 
Thu.<,  the  lessee  was  entitled  to  ernhlements,  notwithstanding  a  determi- 
nation by  the  lessor,  though  not  after  a  determination  b}^  himself;  and 
the  le.'^sor  to  rent,  though  the  lessee  quit  before  rent-day.  A  tenant  at 
"will  is  also  entitled  to  estovers.  So,  it  has  been  held  tha^  tine  mdtiure 
made  ujion  the  land  belongs  to  him,  and  may  be  taken  by  his 
crcditors.(l)(«) 

3.  Estates  at  will,  in  the  strict  sense,  have  become  almost  extin- 
guished under  the  operation  of  express  statutes  and  judicial  decisions. 
At  first,  a  lease  for  no  certain  time,  reserving  an  annual  rent,  was  con- 
strued as  for  one  year.  By  the  modern  English  doctrine,  the  old  estates 
at  will  are  treated  as  tenancies /rom  year  to  year,{h)  unless  there  is  an  ex- 

(1)  Cliandler  V.  Thurston,  10  Tick.  209-10;  4  Kent,  lOD-10;  Staples  r.  Emery,  7  Greenl. 
201. 


sonage  land,  &c.,  with  liberty  to  remove  it  at  pleasure,  and  that  tliey  have  the  land  from  the 
road,  &e.,  for  a  seminary-yard.  Held,  the  vote  gave  an  estate  at  will.  Cheever  v.  Pearson, 
16  Pick.  266. 

After  a  verhal  agreement  by  A  to  purchase  the  house  of  B,  payment  of  the  price  and 
possession  taken,  but  before  a  deed  was  given  ;  the  house  was  burned.  A  tliereupon  quit 
the  land,  refused  a  deed  tendered  by  B  immediately  after  the  fire,  and  brought  a  suit  to 
recover  back  tlie  price,  in  which  he  prevailed.  Held,  A,  while  occupying  the  house,  was  a 
tenant  at  will,  and  liable  for  use  and  occupation,  but  not  after  refusing  llie  deed.  Gould  v. 
Thompson,  4  Met.  224.  Eljectment  may  be  brought  against  a  grantee,  as  landlord,  whore 
the  grantor  has  remained  in  possession  since  the  deed  was  made.  Hodges  v.  Gates,  9 
Yerm.  178. 

But  it  lias  been  held,  that  a  deed  of  land  in  fee,  with  a  clause  that  the  grantor  should 
retain  pos.session  until  a  certain  time,  does  not  constitute  the  relation  of  landlord  and  tenant, 
so  as  to  give  jurisdiction  by  summarj"-  process  for  recovering  possession,  after  the  time  has 
elapsed.     Sims  v.  Humphrey,  4  Dcnio.  185. 

lu  Vermont,  where  one  enters  upon  land  under  an  agreement  to  buy  it,  which  fiiils 
without  his  fault,  no  action  lies  for  use  and  occupation.  Hougli  v.  Birgo,  11  Verm.  190. 
Nor  is  he  entitled  to  notice  to  quit.     AVright  v.  Moore,  21  Weud.  230. 

Where  one  whose  land  has  been  sold  on  execution  remains  in  possession  an  uncertain 
time,  by  consent  of  the  purchaser,  he  is  tenant  at  will.  Nichols  i'.  "Williams,  8  Cow.  13. 
See  1  Swift,  91;  "Watkins  v.  Holman,  10  Pet.  25;  Stansbury  v.  Taggart,  3  McL.  457. 

"W'hcre  one  took  possession  of  land  under  an  agreement  to  purchase,  and  thus  became  a 
tenant  at  will,  and  upon  his  death  his  widow  and  devisee  entered  ;  held,  she  did  not  become 
a  tenant  at  will,  but  her  possession  was  adverse,  and,  being  continued  twenty  years,  gave  a 
legal  title.     Doe  v.  Rock,  1  C.  &  Mar.  549. 

(a)  In  England,  it  seems,  an  outgoing  tenant  may  sell  or  remove  the  manure.  Roberts  v. 
Barker,  1  Cr.  &  Mees.  809.  So  in  North  Carolina,  at  any  time  before  he  quits.  Smithwick 
V.  Ellison,  2  Ired.  326.  See  Goodrich  v.  Jones,  2  Hill,  142;  Rinehart  v.  Ulwino.  5  W.  &  S. 
157  :_  Law  Rop.  (Jan.  1854,)  481.  But  it  is  held  in  Massachusetts,  that  an  outgoing  tenant 
at  will  of  a  farm  has  no  right  to  remove  the  manure  made  thereon  in  tlie  ordinary  course 
of  husbandry,  and  consisting  of  the  collections  from  the  stable  and  barn-yard,  or  of  com- 
posts caused  by  the  admixtureofthe.se  with  other  substances  taken  from  the  farm;  and,  if 
he  sell  such  manure,  to  bo  removed,  to  one  having  notice  of  the  landlord's  title,  the  pur- 
chaser gains  no  property,  but  is  liable  in  trespass  to  the  landlord  for  removing  the  manure. 
Otherwise,  with  manure  made  in  a  livery  stable,  or  in  any  manner  not  connected  with  agri- 
culture, or  in  a  course  of  husbandry.  Daniels  v.  Pond,  21  Pick.  367.  The  tenant  has  a 
qualified  possession  of  the  manure,  for  the  purpose  of  using  it  on  the  farm  ;  but  a  sale  by 
him  vests  the  right  of  possession  in  the  landlord.  lb. ;  ace.  Lassell  v.  Reed,  5  Greenl.  222  ; 
Middlebrook  v.  Corwin,  15  "^''end.  109. 

,  {b)  It  was  formerly  held,  that  a  lease  "from  year  to  year,  so  long  as  both  parties  please," 
created  a  tenancy  for  at  least  two  yeans.  But  it  has  been  recently  decided,  that  a  tenancy 
from  year  to  year  lasts  only  so  long  as  both  parties  please,  and  is  determinable  by  either  at 
the  end  of  any  )-ear  by  notice.  Ring  v.  Argand,  Cro.  Eliz.  775  ;  Doe  v.  Smarridge,  9  Jur. 
781.     See  Doe  v.  Green,  9  Ad.  &  Ell.  658. 

In  South  Carolina,  the  court  of  magistrates  and  freeholders  have  exclusive  and  final 
jurisdiction  of  all  cases  of  the  holding  over  of  tenants,  and  their  judgment  is  final  upon  the 


280  ESTATE  AT  WILL  [CHAP.  XIX. 

press  grant  or  agreement  to  the  contrar3\  With  the  same  qualifica- 
tions, a  tenant  from  year  to  year  has  been  held  entitled  to  six  months' 

tenancy,  the  identity  of  tlie  premises,  and  the  expiration  of  tlie  term  and  holding  over  of 
tiie  tenant.  The  failure  of  the  tenant  to  make  a  valid  defence,  such  as  tenancy  in  (jomraon, 
givfS  the  tenant  no  ground  lor  an  injunction  to  restrain  the  execution  of  a  judgment  of  that 
court.     Leonard  v.  McCooJ,  3  Slrobh.  Eq.  44. 

In  Vermont,  a  tenancy  by  a  parol  lease  for  a  term  of  years,  which,  under  the  Rev.  Sts., 
(ch.  60,  sec.  21,)  is  at  first  an  estate  at  will  only,  by  the  conUnuance  of  possession  and  pay- 
metit  of  rent  by  the  lessee  for  several  years,  (in  this  case  three  years,)  becomes  a  tenancy 
from  year  to  year.     Barlow  v.  Wainwriglit,  22  Vl.  88. 

In  such  case,  the  tenant  cannot,  at  any  time  during  the  year,  surrender  the  premises 
against  the  will  of  the  landlord,  and  tlais  excuse  himself  from  tlie  payment  of  rent.     lb. 

Nor  is  it  any  defence  in  assumpsit  for  use  and  occupation,  that  he  abandoned  the  posses- 
sion,    lb. 

Nortliat  the  tenant,  after  having  been  in  possession  a  ievr  months,  associated  with  him  a 
partner  in  the  business  carried  on  by  him  on  the  premises,  no  new  agreement  being  made 
with  the  landlord.     lb. 

Tlie  parol  agreement  will  still  determine  the  amount  of  rent  and  the  time  of  payment.    lb. 

Tlie  reservation  o(  an  annual  rent  is  said  to  be  tlie  leading  circumstance  that  turns  leases 
for  unc  rtain  terms,  into  leases  from  year  to  rear.  4  Kent,  112;  Pope  v.  Garland,  4  You. 
&  Coll.  394. 

The  English  rule  of  a  tenancy  from  year  to  year  is  said  to  be,  or  to  have  been,  in  force  ia 
Xevv  Ycjrk,  but  not  in  other  States.  4  Kent,  111.  Thus,  where  one  occupied  18  years^ 
and  made  improvements,  but  paid  no  rent,  he  was  tenant  from  year  to  year.  JacksoQ  v. 
Bryan.  1  John.  322. 

In  Indiana  it  has  been  held,  that  a  tenant  from  year  to  year  shall  have  six  months' 
notice  But  the  Revised  Laws  provide,  that  there  shall  be  on\y  three  months'  notice,  im- 
mediately preceding  the  end  of  the  year.  Jackson  v.  Huuhes,  I  Blackf  427 ;  Ind.  Rev. 
L.  5)8 

In  Massachusetts  it  was  at  first  held,  that  a  tenant  at  will  was  not  entitled  to  six  months' 
notice,  but  only  to  reasonable  notice.  The  point  was  afterwards  left  doubtful,  whether  he 
could  claim  any  notice;  but  reasonable  notice  was  finally  held  necessary.  In  one  case,  it 
was  held,  that,  though  the  tenancy  was  determined  by  tlie  will  of  the  lessor  without  notice, 
yet  the  lessee  still  should  have  a  reasonable  time  to  remove  his  family  and  effects.  4  Kent, 
211;  Rising  V.  Stannard,  17  Mass.  287;  Coffin  u.  Lunt,  2  Pick.  70;  lb.  71  n.;  Ellis  v. 
Paige.  1  Pick.  49;  ace.  Folsom  v.  Moore,  1  Appl.  252. 

In  Maine,  tlie  statute  of  frauds  is  construed  to  make  a  parol  lease  strictly  a  tenancy  at 
will.     Little  V  Palister,  3  Greenl.  15. 

In  Pennsylvania,  it  seems,  if  a  tenant  at  will  occupy  more  than  a  year,  he  becomes  a 
tenant  from  year  to  year,  and  is  entitled  to  three  months'  notice.  McDowell  v.  Simpson,  3 
"Watt.?,  129.     See  Cook  v.  Neilson,  10  Barr,  41. 

A  landlord  may  treat  a  tenant  holding  over,  after  a  term,  as  tenant  from  year  to  year,  or 
as  a  trespasser,  at  his  election.     Hemphill  v  Flynn,  2  Barr,  144. 

An  estate  created  without  writing,  in  New  Hampshire,  is  only  at  will.  Whitney  v. 
Lovett,  2  Post.  10.  So,  though  receipts  for  rent  indicate  a  tenancy  from  year  to  year,  or 
month  to  month.     lb. 

In  South  Carolina,  a  tenant  from  year  to  year,  holding  over  after  the  expiration  of  his 
lease  at  an  annual  rent,  is  entitled  to  three  months'notice  to  quit,  ending  at  the  expiration 
of  the  year.     Godard  v.  Railroad  Co.,  2  Rich.  346. 

The  acts  of  1803  and  1817  have  not  altered  the  common  law  in  relation  to  tenancies 
from  year  to  year,  in  respect  to  notices  to  quit.     lb. 

Lease  to  A  and  B,  partners,  for  one  year.  During  the  year,  B  left  the  firm,  and  C  came 
in.  The  firm  paid  the  rent  reserved,  and  occupied  for  two  years  and  three  months  alter  the 
lease  expired.  Held,  they  bi'came  tenants  from  year  to  year,  and  were  liable  fur  the  rent 
of  the  whole  year  on  which  they  had  entered.     Hartw.  Finney,  1  Strobh.  250. 

Lea.se  for  one  year,  the  tenant  giving  his  note  for  the  rent.  Heoceupied  about  two  years, 
■when  the  landldnl  demanded  his  note  for  the  year's  rent.  The  tenant  refused  to  give  it,  or 
pay  the  rent.  Held,  a  tenancy  from  year  to  year,  determinable  by  notice  to  quit,  but  that 
the  tenant  had  denied  the  tenancy  by  his  refusal,  and  vvas  liable  to  an  ejectment  without 
notice.     The  State  v.  Stewart,  5  Sirobh.  29. 

Ill  Nortli  Carolina  it  is  held,  that,  where  one  takes  possession  of  land  by  license  of  the  ' 
owner,  f()r  an  indeterminate  period,  without  reservation  of  rent,  he  is  not  a  tenant  fi-om 
year  to  year,  but  .«trictly  a  tenant  at  will,  and  not  entitled  to  notice  to  quit.     Doe  v.  Barker, 
4Dev.  220.     See  Brown  v.  King,  5  Met.  173;  supra,  ch.  2. 

In  Tennessee  it  h;is  been  held,  that  a  parol  lease  for  six  years  could  not  be  construed  into 
a  tenancy  from  year  to  year.     Porter  v.  Gordon,  5  Yerg.  100. 


CHAP.  XIX.]  AND  AT  SUFFKRANCE.  281 

notice  to  quit,  and  the  laiullord  to  the  same.  The  notice  must  end  at 
the  end  of  the  year  ;  and  it  has  been  held  that,  even  thougli  the  pre- 
mises be  burned  during  the  3'car,  the  rent  does  not  cease  without  legal 
notice  (1) 

4.  But  the  rule  of  a  half  year's  notice  is  not  an  inflexible  one.  Jus- 
tice and  good  sense  require  that  the  time  of  notice  should' vary  with 
the  nature  of  the  contract  and  the  character  of  the  estate.  Ilence, 
wliere  lodgings(a)  are  hired,  for  instance,  by  the  month,  the  time  of 
notice  is  proportionably  reduced.  And,  where  a  lessor  had  previously 
brought  a  suit  for  rent  against  the  tenant,  charging  him  by  the  month, 
and  prevailed  ;  this  was  held  to  be  evidence  of  an  understanding  that 
he  held  \)y  the  month,  and  to  regulate  the  time  of  notice.(2) 

5.  Tenant  at  will  cannot  assign^  though  he  may  take  a  release ;  but 
a  tenant  from  year  to  year,  it  is  said,  may  assign.  So  a  sale  on  execu- 
tion of  the  title  of  a  debtor,  who  has  only  an  estate  at  will,  will  pass 
no  title  to  the  purchaser  upon  which  he  can  maintain  ejectment.  In 
New  York  and  Missouri,  estates  at  will  and  at  sufferance  are  declared 
to  be  chattel  interests^  but  not  liable  to  be  taken  in  execution .(3) 

6.  An  estate  at  will  may  be  ierminated,{b)  either  by  the  lessor  or 
the  lessee.  The  former  may  determine  the  tenancy  :  1.  By  an  express 
declaration  to  that  effect,  either  made  on  the  land,  or  of  which  the 
lessee  has  notice.(c)  So  by  a  demand  of  possession.  2.  By  any  act  of 
ownership  inconsistent  with  the  tenancy,  such  as  entenng{d)  and  cut- 
ting wood,  carrying  away  stone,  or  making  another  immediate  con- 
veyance.    In  the  case  last  named,  the  lessee  is  said  to  become  a  tenant 


(1)  Ellis  V.  Paige,  1  Pick.  4G :  Izon  v. 
Gonoii.  5  Bing.  N.  501  ;  4  Kent,  110-11  ; 
Webi>er  v.  Sliearm:in.  3  Hill,  547  ;  Kings- 
bury V.  Colliii.s,  4  Biny;ii.  202  See  Alford  v 
Vickery,  1  C.  &  Mar.  280 ;  Doe  v.  Mizem.  2 
Carr.  &  K.  56;  Doe  i'.  Goldwin,  2  Ad.  &  El. 
N.  S  143  ;  Doe  v.  Green,  9  Ad.  &  Eli.  658 ; 
Atherstoiie  v.  Bostock,  2  Scott,  N.  637. 


(2)  4  Kent,  111-12;  Coffin  v.  Lunt,  2  Pick. 
70;   Priiidle  v.  Ander.son.  19  Wend.  391. 

(3)  Colvin  V.  Baker,  2  Barb.  206  ;  4  Kent, 
112;  N.  Y,  R<v.  Sis.  722;  W^i.sc.  Rev  Sts. 
314;  Bravthwaito  v  TIitclico?k,  10  Mees.  & 
W.  494;  Bigelovv  v.  Fmcli,  11  Barb.  498. 


(a)  Lodgings  are  defined,  in  reference  to  letting  and  hiring,  as  part  of  a  tenement.  They 
are  held  to  require  a  written  contract,  as  in  any  otiier  case  of  a<;reL'ment  relating  to  lands. 
Edge  V.  Stallbnl,  1  Cr.  &  J.  391.  So,  where  one  took  a  houst^,  partly  rurnisiicd,  at  a  certain 
rent,  and  the  owner  agreed  to  send  in  all  other  necessary  furniture  ;  held,  this  agreement 
related  to  an  interest  in  land,  and  must  be  in  writing.  Meehelen  v.  Wallace,  7  Ad.  &  Eli.  49. 
But  a  contract  with  the  keeper  of  a  hotel  or  boarding-house,  for  board  and  lodging,  paying 
separate  prices  for  each,  creates  no  tenancy,  and  gives  the  lodger  no  interest  in  real  estate. 
"Wil.son  V  Martin,  1  Denio,  602.  But  lodgers  have  the  rights  of  tenants,  sueli  as  the  use  of 
the  doDr-licll,  knocker,  skylight  of  the  staircase,  and  water-closet.  Undeiwood  v.  Burrow.s, 
1  Carr,  A  P.  26.  So,  it  haa  been  held,  they  cannot  quit  without  notice.  Rickett  v.  Tullick, 
6  Carr.  &  P  66. 

{b)  A  tenant  at  will  has  an  estate,  which  must  be  terminated,  before  he  will  cease  to 
have  a  right  of  possession,  begin  to  hold  unlawfully,  or  be  liable  under  the  statute.  Wheeler 
V.  Woo  1,  25  .Maine,  287. 

Trespa.ss  to  try  titles  will  not  lie  against  a  tenant  at  will,  as  a  wrong-doer,  till  his  tenancy 
is  determined.     Jones  v.  Jones.  2  Rich.  542. 

(';)  The  tenancy  terminates  instanter.  But  pi-rhaps  the  tenant  may  enter  to  remove  his 
goods,  without  being  a  trespasser.     Doo  v.  McKay,  10  B.  &  C.  721. 

{d)  When  a  landlord,  having  a  right  of  entry  upon  a  house  wliich  his  tenant  has  just  left, 
finds  the  doors  open  and  the  house  vacant,  he  may  lawfully  enter  and  keep  possession,  re- 
move llie  furniture  carefully,  and  store  it  safely  at  hand  for  his  use.  Rollins  v.  Mooers,  25 
Maine,  192. 


282 


ESTATE  AT  WILL 


[CHAP.  XIX. 


at  will  or  at  sufferance  to  the  landlord's  grantee,  who  cannot  treat  him 
as  a  trespasser  before  entry  or  notice  to  quit.(l)(a) 

7.  The  old  doctrine,  as  to  terminating  the  estate  by  the  ads  of  the 
lessor,  is  still  held  to  be  in  force,  and  not  superseded  by  the  statutory 
provisions  in  relation  to  notice.(h)  Thus,  a  sale  and  conveyance  by  the 
lessor  terminates  the  estate  at  will,  and  makes  it  a  tenancy  at  suffer- 
ance, not  subject  to  the  statutory  provision  as  to  notice  to  quit.(2) 

8.  A,  having  leased  to  B  at  will,  and  the  rent,  payable  quarterly, 
being  in  arrear,  gave  written  notice  to  quit,  and  leased  to  C  for  years, 
not  notifying  B  of  such  lease.  Held,  C  might  immediately  bring  the 
landlord  and  tenant  process  against  B.(3)(c) 

9.  If  a  mortgagee  enter,  and  notify  the  tenant  of  the  mortgagor  to 
pay  rent  to  him  or  quit,  the  tenancy  is  terminated. (4) 

10.  If  a  lessor  at  will  becomes  insolvent,  the  vesting  order,  and  no- 
tice thereof  to  the  tenant,  terminate  the  estate.(5) 

11.  On  the  other  hand,  the  lessee  may  determine  an  estate  at  will,  by 
any  act  of  desertion,  or  any  act  inconsistent  with  the  tenancy  ;  as  by 
attempting  to  convey  in  fee,  assigning,  or  committing  waste.  If  he 
assign,  or  make  a  lease,  this  amounts  to  a  disseizin  of  the  lessor,  at  his 
election  ;  but  it  is  held  that  the  assignor,  and  not  the  assignee,  is  the 
disseizor,  though  the  landlord  may  sue  the  assignee  in  trespass.  And, 
by  committing  waste,  the  lessee  becomes  a  trespasser — it  being  a  de- 
termination of  his  estate.  The  action  o^  waste  does  not  lie  against  him, 
nor  is  he  liable  in  any  form  for  mere  jxrmissive  waste.(6)(cf) 

12.  A  tenant  at  will  mortga^-es  in  fee,  and  the  mortgagee  enters 
under  a  judgment  upon  the  mortgage.  The  lessor  may  have  trespass 
against  the  mortgagee.(7) 

13.  A  convej's  land  to  B,  but  continues  to  occupy  as  his  tenant  at 
will.  C,  a  creditor  of  A,  levies  an  execution  upon  the  land  himself, 
enters,  and  A  points  out  what  part  of  the  land  he  wishes  to  have  levied 
on,  assists  the  surveyor,  and  gives  no  notice  of  B's  title.     Held,  these 


(1)  1  Cruise,  190-1;  Keary  v.  Goodwin, 
16,  Mass.  1;  Rising  v.  Stannard,  17,  288; 
Howell  V.  Howell,  7  Ired.  49 B :  Turner  v. 
Doe,  9  Mees.  &  W.  643.  See  Dorrell  v. 
Johnson,  17  Pick.  263;  Davis  v.  Thomas,  5 
Eng.  L.  &  Equ.  487. 

(2)  Benedict  v.  Morse,  10  Met.  223. 

(3)  Hildretli  v.  Conant,  10  Met.  298  ;  Kelly 
V.  Waite,  12,  300. 

(4)  Hill  V.  Jordan,  30  Maine,  367. 


(5)  Daviesz;.  Thomas,  6  Eng.  L.&  Equ  487. 

(6)  Warner  v.  Page,  4  Verm.  291:1  Cruise, 
191;  Howell  V.  Howell,  7  Ired  496;  Chan- 
dler V.  Thurston,  10  Pick.  209  ;  Co.  Lit.  57  a  ; 
Blunden  t'.  Baugh,  Cro.  Car.  302;  Lit.  71; 
Shrewsbury's  case,  5  Rep.  13  b;  Treat  v. 
Peck,  5  Conn.  280  :  Daniels  v.  Pond,  21  Pick. 
367  ;  Cooper  v.  Adams,  6  Cush.  87. 

(7)  Little  V.  Palister,  4  Greenl.  209. 


_  (a)  But,  where  A  conveys  to  B,  and  B  to  C,  and  A  remains  in  possession,  C  may  have 
ejectment  against  liim  without  notice,  though  B  has  received  rent  since  the  conveyance  to 
C.  Jackson  v.  Aldrich,  13  Joiin.  106.  But  a  grantor,  remaining  in  possession,  is,  like 
other  tenants  at  will,  entitled  to  the  cro^j.s.  Sherburne  v.  Jones,  2  Appl.  70.  In  case  of  a 
lease  strictly  at  will,  an  entry  by  the  landlord,  and  notice  to  quit  given  to  the  tenant,  will 
terminate  the  lease  and  revest  possession  in  the  landlord,  though  tlie  tenant  be  not  actually 
turned  out.     Curl  v.  Lowell,  19  Pick.  25. 

(b)  It  is  said,  tenancy  at  will  seems  still  to  retain  its  original  character,  except  for  the 
purpose  of  notice ;  and,  with  regard  to  this,  it  will  be  seen,  that,  in  most  of  the  United 
States,  specific  statutory  provisions  have  established  a  definite  rule,  which  leaves  no  room 
for  construction  or  uncertainty. 

(';)  And  if  the  tenant  at  will,  having  notice  of  such  lease,  enter  and  remove  the  crops, 
he  is  liable  in  trespass  to  a  purchaser  from  the  lessee.     lb, 

(d)  Nor  a  tenant  from  year  to  year.  Torriano  v.  Young',  6  Carr.  &  P.  8  ;  Gibson  v.  Wells, 
1  N.  R.  290.     In  Indiana,  in  case  of  waste,  no  notice  to  quit  is  necessary.     Ind.  Rev.  L.  520. 


CHAP,  XIX.]  AND  AT  SUFFERANCE.  -  283 

facts  constitutcJ  a  dclcrminatioii  of  A's  tcnanc}',  so  that  B  iniglit  uuiiii- 
taiu  trespass  against  0.(1) 

14.  The  (.katlt  of  either  landlord  or  tenant  terminates  an  estate  at 
will.(2) 

15.  A  distinetion  is  made  between  a  termination  of  the  estate  by 
notice^  and  a  termination  in  other  modes,  without  notiee.^Jn  the  former 
case,  the  tenant,  it  seems,  becomes  a  trespasser  by  holding  over,  but 
not  in  the  latter ;  as,  for  instance,  by  the  dtath  of  the  landlord,  of  which 
the  tenant  is  not  notified.(8) 

16.  Where  a  parol  letting  is  made  for  a  particular  object,  the  lessee's 
estate  will  not  extend  beyond  the  time  necessary  for  this  purpose. 
Hence,  if  the  tenant  is  put  upon  the  land  to  raise  a  crop,  and  absconds 
before  the  crop  is  completed ;  this  determines  his  estate.(-±) 

17.  Although  a  tenancy  at  will  may  be  terminated  by  the  landlord, 
as  above  stated ;  yet,  as  to  third  persons,  while  the  tenant  occupies,  the 
title  is  regarded  as  being  in  him.  Hence,  for  any  injury  to  the  land, 
which  aliects  merely  the  interest  of  the  tenant,  as  by  treading  down 
the  gi-ass  and  breaking  down  a  fence  built  by  the  tenant,  the  landlord 
cannot  maintain  an  action. (5) 

18.  In  England,  b}^  a  recent  statute,  and  in  New  York,(a)  Penn- 
sylvania, New  Jersey,  Maryland,  Indiana,(^)  Connecticut,  (applicable 
to  both  written  and  parol  leases,)  New  Hampshire,  Vermont, (c)  Elaine 
and  Massachusetts,  and  probably  other  States,  a  summary  process  is 
provided,  by  which  a  landlord  may  regain  possession  of  land  held  by 
a  tenant  at  will,  after  notice  to  quit.  In  Indiana,  the  right  to  emhle' 
ments  is  saved.  In  most  of  these  States,  an  accompanying  provision 
is  made  with  regard  to  the  time  of  notice  requisite  before  commencing 
the  process  referred  to.(rf)  In  New  York  and  Maryland,  one  month's 
notice  is  required;  in  Pennsjdvania,  Dela3vare,  Massachusetts,  In- 
diana,(e)  Michigan,  Iowa,  New  Jersey,  New  Hampshire,  three  months' 


(1)  Campbell  v.  Procter,  6  Greenl.  12. 

(2)  17  Mhss.  284. 

(3)  lb.  287. 


(4)  Chandler  v.  Tliurston,  10  Pick.  209. 

(5)  Little  V.  Palister,  3  Greenl.  6. 


(a)  III  tills  State,  an  exception  from  the  process  referred  to,  is  where  a  term  has  still  five 
years  to  run.     St.  1840,  119. 

(b)  In  tiiis  State,  if  the  tenancy  is  from  year  to  year,  there  must  be  three  months'  notice 
before  the  end  of  the  current  year,  eiidin<r  on  the  day  wlien  posssossion  besjan.  Rev.  St. 
584.  To  maintain  the  process,  the  plaintiff  must  prove  that  he  is  the  landlord  of  the  de- 
fendant, or  claims  under  such  landlord.     Avery  v.  Smith,  8  Blackf  222. 

(c)  Summary  process  applies  in  Vermont  to  parol  leases.  St.  1842.  Middlebury,  &c.  v. 
Lawson,  23  Verm.  688.  The  lessee  and  the  parties  in  po.ssession,  sub-tenants,  adverse 
claimants,  kc,  may  be  joined  in  suit.  lb.  The  plaintiff' recovers  all  rent  due  at  the  time  of 
judtrniPiit    II).     See  Sts.  1850,  11;  Had  ley  v.  Havens,  24  Verm.  520. 

('/)  The  statute  (summary,  &c.)  does  not  apply,  where  the  tenancy  ends  by  consent,  as  at 
common  law.     Cooper  v.  Adams,  6  Cush,  87. 

(e)  A  notice  to  quit  must  be  absolute.  A  notice  demanding  possession,  and  declaring 
thai,  if  possession  is  not  given  by  a  certain  day,  rent  at  a  given  rate  will  be  claimed,  is  not 
sufficient.     Ayres  v.  Draper,  11  Mis.  548. 

An  unauthorized  notice  to  quit  has  been  held  insufficient,  though  afterwards  ratified  by 
the  landlord.     Doe  v.  Goldwiii,  2  Ad.  and  Ell.  (N.  S.)  143. 

Where  a  person  is  in  possession  in  pursuance  ofan  agreement  for  a  purchase,  and  fails  to 
comply  witii  his  part  of  the  agreement,  ejectment  will  lie  against  him  at  the  suit  of  the 
vendor,  without  notice  to  quit.  Baker  r.  Gittings,  16  Ohio,  485 ;  Brumfield  v.  Brown,  7 
Blackf  142 ;  Powers  v.  Ingraham,  3  Barb.  576.     But  see  Bedford  v.  Thomns,  6  B.  Mon.  332. 

Where  the  defendant  in  ejectment  was  in  possession  under  a  contract  for  title  with  a 
third  person,  who  was  not  shown  to  have  any  connection  with  the  lessor  or  the  plaintiff; 
held,  notice  to  quit  was  not  necessary.     Petty  v.  Doe,  13  Ala.  568. 


284  ESTATE  AT  WILL  [CHAP.  XIX. 

notice;  in  Connecticut  and  IMaine,  thirty  days,'     In  general,  if  the  rent 
is  made  paj'able  at  shorter  intervals  than  the  periods  above  named,  the 

If  one  who  lias  entered  as  tenant,  or  quasi  tenant,  attempt  to  set  up  title  under  another, 
he  is  not  entitled  to  notice  to  quit.  Meramaa  v.  Caldwell,  8  B.  Mon.  32.  Bedford  v. 
Thomas,  6  B.  Moa.  332. 

On  i\  SMle  of  land  on  execution,  the  pijrchaser  is  entitled  to  immediate  possession,  and  the 
defendant  in  execution,  being  in  possession,  is  not  entitled  to  notice  to  quit.  Suovvden  v. 
McKinney,  7  B.  Mon.  258. 

Tlie  service  of  a  notice  to  quit  is  not  in  law  an  admission  of  a  subsisting  tenancy  ;  espe- 
cially where  such  notice  is  served  at  tlie  same  time  with  a  declaration  and  notice  in  eject- 
ment,  lb.     Powers  v.  Incrraham,  3  Barb.  576. 

Lease  fur  five  years,  provided  that  eitiier  party  may  terminate  it,  if  dissatisfied,  by  giving 
the  other  six  months'  notice,  and  fulfilling  all  the  otlier  requirements  of  tiie  lease  till  the 
end  of  the  six  months;  with  an  agreement  in  the  lease,  to  pay  the  rent  by  boarding  the 
Jessor  and  his  family  twenty-seven  weeks  each  year  between  October  and  May.  Held,  the 
notice  must  expire  at  the  end  of  a  year  of  the  term.     Baker  v.  Adams.  5  Gush.  99. 

If  a  tenant  at  will,  whose  rent  is  payable  quarterly,  quit  the  premises  on  a  quarter  day, 
without  three  rnontiis'  notice,  he  will  be  \vA)\q prima  facie  for  another  quarter's  rent;  and, 
in  an  action  therefor,  the  burden  of  proof  will  be  on  him,  to  show  that  the  landlord  had  waived 
the  notice,  which  would  be  a  bar  to  the  action,  or  that  he  had  resumed  possession  under  an 
agreement  which  discharged  the  tenant  from  further  liability  for  rent.  Whitney?;.  Gordon,  1 
Cush.  2G6. 

The  lessor  of  a  store  gave  the  tenant  three  months'  notice  to  quit,  and,  at  the  end  of  that 
time,  upoti  the  tenant's  saying  that  it  would  be  a  great  accommodation  to  him  to  reraaia 
longer,  in  order  to  sell  ofi'  liis  goods,  the  landlord  consented  to  his  remaining.  Having  staid 
sixteen  days,  the  landlord  co[umenced  the  statutory  process  to  eject  him.  Held,  the  notice 
had  not  been  waived,  and  the  action  was  maintainable.     Babcock  v.  All)ee,  13  Met.  273. 

A  landlord,  to  wliom  rent  was  payable  monthly,  gave  notice  to  the  tenant  to  quit  "  for 
the  non-payment  of  rent."  The  same  day,  tlie  tenant  tendered  him  several  months'  rent; 
but  it  did  not  appear  whether  the  tender  was  before  or  after  service  of  the  notice.  The 
landlord  said,  ho  did  not  wish  to  take  the  money,  as  the  tenant  had  made  repairs,  and  he 
did  not  know  the  amount  due;  that  the  tenant  need  not  quit,  and,  when  he  slionld  come 
again,  he  would  ascertain  the  balance  and  settle.  Six  or  seven  weeks  afterwards,  the  land- 
lord brings  a  process  of  ejectment.  Held,  under  the  notice,  the  plaintiff  could  recover  only 
on  the  ground  of  non-payment  of  rent;  that,  if  the  tender  was  prior  to  the  notice,  the  rent 
was  not  in  arrear;  if  subsequent  to  the  notice,  tliere  was  a  waiver  of  the  notice,  and  a 
renewal  of  the  tenancy.     Tuttle  v  Beau,  13  Met.  275. 

If,  after  a  notice  to  quit,  the  lancTlord  receives  rent  for  a  period  subsequent  to  its  expi- 
ration, the  notice  is  waived.  Collins  v.  Canty,  6  Cush.  15.  See  Whitney  v.  Swett,  2  Post. 
(N.  H.)  10. 

In  Indiana  and  Kentucky  (and  this  is  undoubtedlj'  the  general  rule)  the  relation  of  land- 
lord and  tenant  must  exist,  to  entitle  a  party  to  notice.  Ind.  Rev.  Sts.  585-6;  Shackle- 
ford  V.  Smith.  5  Dana,  237. 

The  rule,  that  six  months'  notice  to  quit  mu.st  expire  at  the  end  of  the  year,  does  not  ap- 
ply as  between  vendor  and  vendee  by  executory  contract.  Landers  v.  Beauchamp,  8  B. 
Mon.  493. 

Where  one  enters  under  an  agreement  for  a  lease,  which  he  refuses  to  accept,  he  may  be 
immediately  ejected.  But,  if  the  landlord  has  received  the  rent  monthly,  according  to  the 
original  agreement,  a  month's  notice  is  requisite      Anderson  v.  Prindle.  23  Wend.  616. 

The  act,  as  to  summary  process,  does  not  apply,  where  the  landlord  acquired  his  title 
under  tlie  levy  of  an  execution,  and  the  occupant  holds  under  an  adverse  title.  Morrison 
V.  Tenney,  15  N.  H.  126;    Hovey  v.  Blanchard,  13,  145. 

Where  a  tenant  al)andoiis  the  premises  during  an  action  of  forcible  detainer,  and  another 
party  intrudes,  claiming  for  himself;  the  original  tenant  is  not  liable  for  rent  accruing  after 
his  abandonment.     Newman  v.  Mackin,  13  S.  &  M.  383. 

In  all  cases,  where  the  landlord  wishes  to  avail  himself  of  the  provisions  of  the  Rev.  Sts.  of 
North  Carolina,  (c.  31,  sec  51.)  requiring  bonds  from  tenants  refusing  to  surrenJer  possession, 
&c.,  he  must  not  only  state  the  lease,  and  that  tlie  term  has  expired,  but  must  also  set  forth 
in  his  affidavit,  exphcitly  or  in  such  a  manner  that  the  court  may  necessarily  and  fairly 
draw  the  inference,  that  the  tenant,  after  the  term  expired,  bad  refused  to  surrender  the 
possession.     Phelps  v.  Long,  9  Ired,  226. 

Where  the  landlord  obtains  possession  by  summary  proceedings,  which  are  reversed  on 
certiorari,  the  tenant  is  not  entitled  to  restitution,  if  his  term  has  expired.  Chretien  v.  Do- 
ney,  1  Comst.  419. 

A  court  of  equity  has  not  jurisdiction  to  stay  summary  proceedings,  under  the  statute 
of  New  York,  (2  Rev.  t.ts.  511,)  by  a  landlord  to  eject  a  tenant  holding  over  after  the  ter- 


CHAP.  XIX]  AKD  AT  SUFFERAXCE.  285 

time  of  notice  is  reduced  accordingly.  Where  tbe  rent  is  unpaid,  only 
seven  days'  notice  is  required  in  iS'ew  Ilanipshire,  if  the  rent  is  paya- 
ble at  shorter  intervals  tlian  three  months;  fourteen  in  Massachusetts; 
thirty  in  Maine.(l) 

U).  In  Ohio,  it  is  said,  nothing  is  settled  on  the  subject  ^of  notice. 
In  ejectment  against  a  tenant,  there  must  be  ten  dayi'-notice  before 
commencement  of  the  term  at  which  the  appearance  is  to  be  made; 
and,  in  the  process  of  forcible  detainer,  ten  days'  notice  before  suit 
brought.  It  is  intimated,  that  this  is  the  only  required  notice  to  quit. 
But  the  notice  must  expire  before  or  at  the  time  when  the  period  des- 
ignated ends.  If  the  tenant  enter  upon  a  new  one,  he  shnll  hold  till 
the  end  of  it.  The  pay  day  or  rent  determines  the  length  of  the 
period. (2) 

20.  In  South  Carolina,  where  there  is  a  lease  or  demise  in  writing, 
for  one  or  more  years,  or  at  will,  after  a  determination  of  the  estate 
and  a  written  demand,  the  lessor,  after  ten  days,  may  have  a  summary 
process  to  obtain  possession,  against  either  the  lessee,  or  his  sub-ten- 

ant.(;-;) 

21.  It  is  said  that  in  New  York,  the  statute,  providing  summary 
process  against  tenants,  does  not  j)rovide  for  any  notiee  to  a  tenant 
from  year  to  year.     Hence  he  may  be  turned  out  without  notice.     The 

act  does  not  apply  to  a  tenancy  created  by  operation  oflaw.{4:) 

22.  The  resolutions  of  the  courts,  turning  estates  at  will  into  tenan- 
cies from  year  to  year,  though  founded  in  equity  and  sound  policy,  are 
said  to  be  a  species  o\' judicial  legidation  ;  and  would  seem  to  be  opfjosed 
by  the  English  statute  of  frauds,  which  was  long  subsequent  to  the 
introduction  of  this  tenancj',  and  which  declares  "all  leases,  estates,  or 
uncertain  interests  in  land,  made  by  parol,  to  have  the  force  and  ellect 
of  estates  at  will  onl}^  and  not  in  law  or  equity  to  be  deemed  or  taken 
to  have  any  other  or  greater  force  or  effect,  excepting,  however,  leases 
for  not  more  than  three  years,  on  whieh  a  rent  is  reserved,  amounting 
to  two-thirds  of  the  full  improved  value."    "  The  English  decisions," 

(1)  4  Kent,  113;  1  Stcpli.  474-5;  Iowa  v.  Tarbox.  20  Conn.  510;  Smith  v.  Rome.  31 
Code,  eh.  78,  s.  1209;  Ind.  Rev.  Sts.  584;  Mniiie.  212;  Preble  v.  Hay,  32.  456;  Falkner 
Mass.  Rev.  Sts.  412,628;  Dela.  Sis.  1829,  v.  Beers,  2  Donj;.  117;  Cliamberlin  v.  Brown, 
285;  1  Swia,  91  ;  N.  H.  L.  1831,  22-4;  lb.  120,  n. ;  Buck  v.  Binnintrer,  3  Barb.  391  ; 
Prindle  r.  Anderson.  19  Wend.  391;  Conn.  '  MeKeon  v.  Kinp-,  9  Barr,  213;  Sims  v. 
Sts.  1«38,  399;  Davis  V.  Thomp.son,  13  Maine,  i  Humphrey,  4  Denio,  185;  Curiniii"! 
209;  Wbitet;.  Builey,  14Conii.  271  ;  Ander-  "" 
son  V.  Critcher,  11  G.  &  J.  450;  Mieii.  Rev. 
Sts.  14 ;  N.  II.  Rev  Sts.  424 ;  Mo.  Rev.  Sts. 
393;  N.  Y.  Sis.  1842,  293;  1S49,  291;  N. 
J.  Sts.  1830,  104:  Me.  Sts.  1853.  35;   Wood- 


Goelet,  lb.  71 ;  Iloiiiy  v.  German,  &c.,  2  Burr, 
293. 

(2)  1  Md.  L.  126;  "Walk.  Intro.  2S0. 

(3)  Brev.  Disj.  10. 

(4)  Nichols  V  Vv'iliiams,  8  Cow.  13  ;  Evert- 


man  V.  Ranger,  30  Maine,  180  ;  Quinebaug,  &c.  1  son  v.  Sutton,  5  Wend.  281 


mination  or  his  term.  If  the  tenant  has  su.?tained  injury  by  the  proceed  ngs,  he  has  an  ade- 
quate remedy  at  law,  either  by  writ  of  resiitulii-n  from  tlie  Supreme  Court,  or  by  action  on 
the  covenants  of  Ilia  lease.     Smilit  v.  Moll'at,  1  Barl).65. 

Under  the  Mi.^isouri  act  concerning  landlords  and  tenants,  the  landlord  is  entitled  to  his 
action  for  possession  against  the  tenant,  or  other  person  in  posses.«ion,  and  caiuiot  bo  de- 
prived of  his  remedy  by  a  transfer  of  pos.session,  or  by  an  abandonment  by  his  tenant  and 
the  intrusion  of  a  stranger.     Will  v.  Peters,  11  Mis.  395. 


286 


ESTATE  AT  WILL 


[CHAP.  XIX. 


Chancellor  Kent  remarks,(a)  "  have  never  alluded  to  this  exception,  but 
have  moved  on  broader  ground  and  on  general  principles,  so  as  to  ren- 
der the  exception  practically  use!ess."(l)  The  exception  is  dropped  in 
the  statute  of  frauds  of  Massachusetts,  New  York,  Maine,  New  Hamp- 
shire and  Vermont,  but  retained  in  Missouri,  Indiana,  Georgia,  South. 
Carolina,  New  Jersey,  Michigan,  and  in  North  Carolina(Z')  and  Pennsyl- 
vani;i,  (without  reference  to  the  amount  of  rent  reserveLl.)(2) 

23.  In  Illinois,  New  York,(c)  Alabama,  Ehode  Island,  Tennessee, 
yirginia,(o)  and  in  South  Carolina  and  Missouri, (4)  as  the  general  rule, 
parol  leases  for  more  than  one  year  are  void  for  any  longer  term. 
Similar  provision  is  made  in  Kentucky.  But  it  is  there  held,  and  such 
undoubtedly  is  the  settled  general  rule,  that  the  statute  does  not  render 
the  lessee  a  trespasser.  The  rent  reserved  may  be  the  measure  of  com- 
pensation for  use  and  occupation,  for  which  an  action  or  a  distress  will 
lie.  And,  it  is  said,  one  entering  under  a  parol  lease  for  five  years,  may 
retain  possession  against  any  process  known  to  the  law.(5)(cZ) 

24.  In  Counecticut,(6)  the  only  statutory  provisions  are,  that  no 
action  shall  be  brought  upon  a  parol  contract  for  the  sale  of  lands,  &c. ; 
and  that  no  lease  shall  be  valid  for  more  than  one  year,  against  any 
but  the  lessor  and  his  heirs,  unless  written,  &c.,  and  recorded. 

25.  In  Massachusetts,  the  court,  in  one  case,  founded  their  strict  con- 
struction of  the  statute  of  frauds — differing  from  that  given  to  the 
English  statute — upon  the  consideration  that  the  excepting  clause  con- 
tained in  the  latter  is  wanting  in  the  former.(7)  But  in  another.  Judge 
Putnam  strongly  contends  that  this  is  an  unauthorized  construction. 
According  to  him,  the  statute  of  frauds  does  not  pretend  to  describe  the 
incidents  of  an  estate  at  will ;  but  only  provides  that  parol  leases  shall 
have  the  effect  of  leases  at  will, — meaning  the  effect  of  such  leases,  as 
construed  by  judicial  decisions.  And  he  urges  the  adoption  of  the  rule 
established  in  these  decisions,  by  weighty  considerations  of  public 
policy  as  to  agricultural  tenants.(&) 

2ti.  In  Virginia,  leases  of  lands  or  lots,  containing  no  stipulation  to 
the  contrary,  if  made  from  year  to  year,  terminate  with  the  current 
year.  In  a  city,  borough  or  incorporated  town,  three  months',  in  the 
country  six  months'  notice  is  required  before  the  end  of  the  year. 


(1)  1  Pick.  4G;  4  Kent,  113-14. 

(2)  Piinl.  Dig.  681:  1  Smith's  St.  288-9; 
1  Vt  L.  188;  K  H.  L.  1829,  505;  Mass. 
Rev.  St.  408;  1  N.  J.  Rev.  C.  151;  Misso. 
St.  284:  Mich.  L  llG-17  ;  Iiid.  Rev.  L.  269  ; 
Prince,  914;  1  N.  C.  Rev.  St.  290;  Briles  v. 
Pace,  13  N.  C.  279. 

(3)  1  Brev.  Dig.  372;  Illin.  Rev.  L.  313; 
S.  C,  St.  Mar.  1817,  p.  35:  Aik.  Dig.  207  ; 
R.  L  L.  366;    1  Vir.   Rev.  G.   15;  Tenn.  St. 


1801,  ch.  25;  Porter  v.  Gordon,  5  Yerg.  102; 

2  N.  y.  Rev.  St.  1 34. 

(4)  Misso.  St.  117;  Purd.  Dig.  681. 

(5)  1  Ky.  Rev.  L  734;  Roberts  t'.  Tennel, 

3  Mou.  251  ;  Calvert  v.  Simpson,  1  J.  J.  Mar. 
548  ;  1  Swilt,  260  ;  Gudgeil  v.  Duval,  4  J.  J. 
Mar.  230. 

(6)  Conn.  St.  262,  350. 

(7)  1  Pick.  46. 

(8)  2  Pick.  72-5-8,  n. 


(ft)  The  court  in  Massachusetts,  as  will  be  presently  seen,  {infra,  sec.  25,)  take  a  different 
view. 

(b)  All  parol  leases  for  mining  purposes  are  void.     Briles  v.  Pace,  13  N".  C.  279. 

(c)  Whether  a  parol  lease  lor  a  year,  to  commence  infuturo,  is  valid,  see  Cresweil  r.  Crane, 
7  Barb.  191;   Young  i;.  Dake,  1  Seld.  463. 

{d)  In  New  York,  a  parol  lease  for  more  than  a  year  is  void.  But,  if  the  rent  is  to  be 
paid  monthly,  and  tl'C  tenant  enters,  the  contract  is  in  this  respect  a  binding  one.  ^Prindle 
V.  Anderson,  19  \Ve,nd.  391.  So,  a  parol  lease  for  four  years  has  been  held  so  far  valid,  as 
to  support  a  distress  for  rent.     Edwards  v.  Clemons,  24  Wend.  480. 


CHAP.  XIX]  AND  AT  SUFFERANCE.  287 

Where  a  time  certain  is  fixed,  no  notice  is  necessary.  In  Maryland,  it 
is  provided,  tliat  no  conveyance  of  an  estate  for  more  than  seven  years 
shall  be  valid,  unless  made  in  writing,  sealed,  &c.  This  seems  to  be 
the  only  st;itule  which  bears  upon  the  subject  of  estates  at  will.(l)  la 
Delaware,(2)  every  lease,  which  specifies  no  certain  term,  is  fyr  a  year, 
or  from  year  to  year,  unless  the  property  has  been  usually- let  for  a  less 
term.  A  tenancy  will  not  be  construed  SiS purely  at  luill,  "  where  it  can 
inuie  or  be  construed  as  being  from  year  to  3'ear ;"  but  the  former 
requires  three  months'  notice  to  quit.  A  lease  can  be  good  only  ibr  a 
year,  unless  made  by  deed.  In  case  of  a  demise  for  one  or  more  years, 
unless  the  landlord  or  tenant  give  notice  to  determine  three  months 
before  the  end  of  the  term,  it  shall  be  renewed  for  one  year. 

27.  Tenant  at  sufferance  is  one  that  comes  into  the  possession  of  land 
by  lawful  title,  but  holdeth  over  by  wrong  after  the  determination  of 
his  interest.(o)  lie  has  onl}'  a  naked  possession,  and  no  estate  which, 
he  can  transfer  or  transmit,  or  which  is  capable  of  enlargement  by  re- 
lease ;  ibr  he  stands  in  no  privity  to  his  landlord,  nor  is  he  entitled  to 
notice  to  quit ;  and,  independent  of  statute,  he  is  not  liable  to  pay  any 
rent,  lie  is  a  ivrong-doer,  and  holds  by  the  laches  of  the  landlord,  who 
may  enter,  using  no  more  force  than  is  necessary,  (it  seems,)  and  put 
an  end  to  the  tenancy  when  he  pleases,  or  bi'ing  ejectment ;  but, 
before  entry,  cannot  maintain  trespass.  In  Ohio,  it  is  said,  though 
such  occupant  is  not  liable  to  rent,  as  such,  he  might  be  liable  in  an 
action  for  use  and  occupation. (o) 


(1)  1  Maryl.  L   126;  Va.  St.  1840-1,  7G-7. 

(2)  Del.  St.  1829,  286,  368.     Rev   St.  366. 

(3)  4  Kent.  115;  Keay  v.  Goodwin,  16 
Mase.  1,  17.  282;  Walk.  280-1;  Mayo  v. 
Fletcher,  1-t  Pick.  525  ;  Duncan  v.  Blaclilbrd, 


2  S.  &  R.  480;  Overdeer  v.  Lewis,  1  Watts 
&  S.  90;  Clapp  v.  Paine,  18  Maine,  264; 
Jones  V.  Muldrow,  1  llice,  64.  See  Pender- 
gast  V.  Toung,  1  Fost.  (N.  H.)  234 ;  Wheeler 
I'.  Wood,  25  Maine,  287.* 


*  Upon  llie  point,  wliether  tlie  landlord  is  justified  in  using  force  to  regain  possession 
there  seeina  to  be  some  doubt.  He  undoubtedly  tiiereby  subjects  himself  to  indictment  for 
breach  of  the  peace,  and  the  only  question  is,  wliether  the  facts  would  furnish  a  justilicalion 
to  an  action  of  trespass  against  liira.  See  4  Kent,  118,  n.  &  autliys.  Beecher  v.  Parmelee 
9  Verm.  352.  ' 

In  a  late  English  case,  it  is  held,  that  the  landlord  cannot  regain  possession  by  force. 
Newton  v.  Harland,  1  Man.  &  G.  644;  1  S>;olt,  N.  474.  Aiui,  it  seems,  such  re-eniVy  does 
not  terminaie  the  estate.  lb.  In  case  of  a  lease  for  a  year,  soon  after  the  end  of  the 
year,  tl;e  landlord  removed  the  tenant's  goods  without  notice.  Held,  ho  was  not  liable  in 
trespass,  unless  lie  used  more  force  than  was  necessary,  or  committed  wanton  injury. 
Overileer  v.  Lewis,  1  W.  &  S.  90. 

In  .Maine,  after  the  expiration  of  a  written  lease,  no  notice  to  the  tenant  is  necessary  for 
the  purpose  of  terminating  the  tenancy.  Preble  v.  Ilay,  32  Maine,  456.  Under  the  statutes 
of  Maine,  a  tenant  holding  over  by  consent,  after  the  expiration  of  the  term,  is  a  tenant  at 
will;  and  is  liable  for  rent  only  so  long  as  be  occupies.  Kendall  v.  Moore,  30  Maine,  327. 
In  Maine,  where  the  occupant  of  land  has  hoiden,  under  a  written  lease,  for  one  year,  and 
holden  over  for  nearly  two  years,  and  neglected  to  pay  any  rent;  his  right  of  po.'^session 
will  terminate  in  thirty  days  alter  written  notice  to  quit,  and  he  will  be  liable  to  the  pro- 
cess of  furcible  entry  and  detainer,  under  Rev.  Sts.  c.  28,  sec.  5.  Wheeler  v.  Cowan,  25 
Maine.  2!<3. 

In  Delaware,  a  tenant  under  a  written  lease,  holding  over,  continues,  without  notice  to 
quit,  to  hold  under  its  terms.  Jackson  v.  Patterson,  4  Marring.  534.  A  tenaiit  for  year.", 
who  remains  in  posse.ssion  after  tlio  expiration  of  his  lease,  is  liable  for  the  same  rate  ot  rent 
as  that  reserved  under  his  lease.  Baker  v.  Root,  4  McLean,  572.  Wliether  a  tenant  ac 
sufl'erance  in  Mas.sacliu.selts  is  liable  to  pay  rent,  qiunre.  Delano  v.  Montague,  4  Cubh.42. 
At  the  expiration  of  a  lease  tor  a  definite  period,  the  lessor  may  tiring  ejectment,  though  be 
has  given  notice  to  quit  in  three  months.     Evans  v.  Hastings,  9  Barr,  273. 

(a)  Ho  is  sometimes  called  tenant  at  will.     4  Kent,  114  n. 


288  ESTATE  AT  WILL  [CHAP.  XIX. 

28.  In  New  Jersey,  it  is  held,(l)  that,  if  a  tenant  for  a  fixeil  term 
hold  over  with  the  lessor's  consent,  he  becomes  a  tenant  from  3^ear  to 
year.  This  consent  may  be  express  or  implied  ;  but  it  can  be  inferred 
only  from  acts;  not  from  mere  silence  and  inaction.  Thus,  where  the 
lease  was  for  a  year,  and  the  tenant  held  over  for  two  years,  held, 
ejectment  would  lie  against  him  without  notice. 

29.  So  in  New  York,(rt)  a  tenant  for  a  year,  who  holds  over  v/ithout 
permission  of  the  landlord,  is  liable  to  the  summary  process  for  ob- 
taining possession,  without  having  received  a  monih^s  notice  to  quit. 
He  is  not  a  tenant  ai  sufferajice  within  the  statute.  Al though  the 
landlord's  assent  to  his  holding  over  may,  it  seems,  be  presumed 
from  mere  lapse  of  time,  yet  it  was  held  that  three  months  and  twelve 
days  was  not  a  sufficient  period  for  this  purpose,  more  especially  as 
the  landlord  had  endeavored  to  regain  possession  without  suit. (2) 

30.  In  case  of  a  verbal  lease  for  a  certain  term,  the  tenant  agree- 
ing to  quit  at  any  time  within  such  term,  if  the  premises  shall  be  sold  ; 
he  becomes  a  tenant  at  sufferance  by  remaining  in  possession  alter  a 
sale,  and  is  liable  to  the  landlord  and  tenant  p-ocess  without  notice  to 
quit.(3) 

31.  So  the  sale  of  land,  mortgaged  with  power  to  sell,  divests  the 
mortgagor  of  all  right  and  interest,  and  if  he  afterwards  continue  in  pos- 
sessi(m,  he  is  a  tenant  at  sufferance.(4.) 

82.  It  has  been  held,  in  Massachusetts,  that  under  sec.  26,  c.  60,  of  the 
Revised  Statutes,  a  tenant  at  sufferance  is  not  entitled  to  notice  to  quit, 
but,  if  he  hold  possession  unlawfully,  by  force,  is  immediately  liable  to 
the  process  of  forcible  entry. (5) 

33.  After  the  expiration  of  a  lease  for  3'ears,  the  agent  of  the  lessor 
went  upon  the  land,  and  cut  trees  by  his  order  and  for  his  use,  but  the 
lessee  continued  to  occupy,  cut  Avood,  and  ploughed  the  land.  The 
tenant  was  notified  to  quit  at  the  end  of  the  term.  In  an  action  of 
trespass  against  him  for  an  injury  to  the  soil ;  held,  the  above  notice, 
though  not  requisite  to  determine  the  lease,  showed  the  lessor's  intent 
in  entering  by  his  agent,  and  that  such  entry  was  sufficient  to  sustain 
the  action.(6) 

34.  Tenant  at  sufferance  must  be  one  who  came  to  his  estate  by  act 
of  party.  If  one  coming  to  an  estate  by  act  of  laiv  hold  over,  he  is  an 
intruder,  abator,  or  trespasser.  So,  where  one  occupies  land  together 
with  the  owner,  he  cannot  be  a  tenant  at  sufferance;  for  if  there  be  no 
agreement  between  them,  the  legal  possession  is  in  him  who  has  the 
right ;  and  if  there  is  an  agreement,  this  negatives  a  sufferance. {!) 

o5.  By  St.  4,  Geo.  IL,  c.  28,  and  11  Geo.  II.,  c.  19,  if  a  tenant  hold 
over  after  demand  and  notice  in  writing  to  quit,  or  after  he  has  himself 

(1)  Den  V.  Adams.  7  Halst.  99.  ;      (7)  4  Kent,   115;  Johnson  v.   Carter,    16 

(2)  Rowan  v  .Lytle,  11  Wend.  61C.  [  Mass.  446.     In  Nortli  Carolina,  any  particu- 

(3)  HoUisv.  Pool,  3  Met.  350.  |  lar  tenant,  holdinp:  over,   comes  under   the 

(4)  Kinsley  v.  Ames,  2  Met.  29.  i  law  pertaining:  to  landlords.     Montgomery  v. 

(5)  lb.  I  Wymms,  4Dev.  &  B.  531. 

(6)  Dorrel  v.  Johnson,  17  Pick.  263.  ] 


(a)  In  this  State,  the  summary  process  is  applied  to  tenancies  at  will  and  sufferance,  to 
cases  or  default  in  payment  of  rent,  of  di.<!charge  under  the  insolvent  laws,  and  sale  of  the 
tenant's  estate  on  execution.     Sts.  1849,  291. 


CHAP.  XIX.] 


AND  AT  SUFFERANCE. 


280 


signitied  his  intention  to  quit ;  he  is  liable  for  douhlo  rent.  These  stat- 
utes are  substantially  re-enacted  in  New  York,  Delaware,  South  Car- 
olina, and  Arkansas,  (where  30  days  are  allowed,)  but  not  generally 
adopted  in  the  United  States.(l)  In  Illinois  and  Missouri,  if  tenant  for 
life  or  for  years  hold  over  after  notice  from  the  landlord,  he  is  liable  for 
double  the  yearhj  value ;  if  after  notice  by  himself  of  an  intention  to 
quit,  double  the  rent  reserved.  And,  in  Missouri,  there'sliall  be  no  re- 
lief in  equity.(2) 

36.  In  New  York,  if  guardians  and  trustees  to  infjints,  or  husbands 
seized  ^^ jure  uxoris"  or  others  having  estates  determinable  upon  lives, 
hold  over,  they  are  trespassers,  and  liable  for  the  full  profits.  There  is 
a  similar  provision  in  England,  by  St.  6  Anne,  c.  18.(8) 

37.  The  same  process,  in  general,  lies  against  tenants  at  sufferance 
as  against  tenants  at  will.(a)  Or  the  landlord  may  re-enter,  without 
force.(4) 

38.  In  South  Carolina  a  statute  provides,  that  all  written  leases  and 
agreements  shall  terminate  at  the  end  of  the  time  specified  there- 
in.(5)(6) 


(1)  4  Kent,  115 ;  Ark.  Rev.  St.  520;  Dela. 
St.  1829,  368;  S.  C.  St.  1808;  Reeves  V.  M'- 
Kenzie,  1  Bai.  497.  See  Robinson  v.  Lee- 
royd,  1  Mees.  &  W.  48. 


(2)  Illin.  Rev.  L.  675 ;  Misso.  St.  376-7. 

(3)  4  Kent,  115,  6. 

(4)  4  Kent,  116. 

(5)  S.  C,  Mar.,  1817,  p.  35. 


(a)  In  England,  a  similar  process  is  provided  by  a  late  act,  1  &  2  Tict.  74.  In  Indiana, 
the  process  does  not  apply  to  tenants  at  sufferance. 

(h)  In  the  same  State,  it  is  said,  a  tenant  liolding  over  after  liis  lease  expires,  is  liable  for 
double  rent.  4  Kent,  117,  n.  In  Indiana,  tlie  summary  process  provided  against  tenants 
at  will  lies  against  a  tenant  for  a  terra  certain,  without  notice.     Rev.  St.  585-6. 


Vol.  I. 


19 


290 


USES  AND  TRUSTS. 


[CHAP.  XX 


CHAPTER  XX. 

USES  AND  TRUSTS.     USES  PRIOR  TO  THE  STATUTE  OF  USES. 


1.  Origin. 

3.  Nature  and  definition  of. 

1.  The  lliree  incidents  of. 

11.  "W'lio  miglit  be  seized  to. 


12.  How  distinpuisbed  from  legal  estates. 
23.  Evils  and  mischiefs  of,  and  statutes  to 
prevent. 


1.  Haying  treated  of  legal  estates,  we  corne  now  to  consider  equitable 
estates,  or  uses  and  trusts.{a)  At  an  early  period  a  practice  ai'ose,  in 
England,  of  one  person's  conveying  lands  to  another,  with  a  private 
agreement  that  the  latter  should  hold  the  lands  for  the  benefit  and 
profit,  of  the  feoffor ;  or  of  a  third  person.  The  practice  did  not  become 
general  till  the  time  of  Edward  III.,  when  it  was  resorted  to  by  the 
churchmen  to  evade  the  statutes  of  mortmain,  and  enable  them  to  re- 
ceive the  rents  and  profits  of  lands,  which  those  statutes  prohibited 
them  from  receiving  and  holding  in  their  own  names.  Such  a  convey- 
ance, made  nominally  to  one  person,  but  for  the  benefit  of  another, 
vested  the  legal  estate  in  the  former,  and  in  the  latter  what  the  law 
termed  a  use. 

2.  A  use  corresponds  to  the  fidei-commissum  of  the  civil  law.  Under 
that  system,  there  were  many  persons  whom  the  law  did  not  allow  to 
be  heirs  or  legatees.  It  became  customary,  therefore,  for  a  testator, 
who  desired  to  make  provision  for  such  persons,  to  constitute  by  will 
some  capable  person  as  his  heir,  adding  a  request  that  he  would  convey 
the  estate  to  the  intended  object  of  his  bounty.  The  latter,  however, 
had  only  a  jus precarium,  or  a  right  depending  on  courtesy  and  en- 
treaty, and  not  a  strictly  legal  claim.  But,  after  the  law  had  continued 
in  this  state  for  several  centuries,  the  Emperor  Augustus  first,  and  af- 
terwards Justinian,  introduced  regulations  which  placed  the  fidei-com- 
missum upon  a  legal  foundation  ;  the  former,  by  giving  jurisdiction  of 
it  to  the  consuls  and  the  prsetor,  (who  was  thence  calladfidei-coynmissa- 
rius,)  and  the  latter,  by  requiring  an  heir,  supposed  to  be  chargeable 
with  such  trust,  to  take  an  oath  that  he  was  not,  or  else  to  execute  it, 

3',  In  tlie  early  age  of  uses,  the  party  beneficially  interested,  called 
cestui  que  use,  like  the  Eoman  hceres  fiduciarius,  had  no  legal,  but  only  a 
precarious  right.  Bat  at  length,  to  protect  the  rights  of  the  clergy,  who 
were  chiefly  interested  in  trust  property,  the  clerical  chancellors  as- 
sumed jurisdiction  of  the  subject ;  and,  in  the  reign  of  Eichard  II.,  John 
Waltbam,  Bishop  of  Salisbury  and  Chancellor,  ior  the  first  time  issued 
a  writ  of  subpoena  returnable  in  Chancerj',  whereby  the  part}^  chai-ged 
with  a  trust  was  compelled  to  appear,  and  answer  upon  his  oath  the  al- 
legations made  against  him.  This  tbrm  of  proceeding,  being  contrary 
to  the  spirit  of  the  common  law,  became  very  obnoxious ;  and,  in  suc- 
cessive reigns,  petitions  against  it  were  presented  to  Parliament,  but 
without  success  ;  till,  in  the  reign  of  Henry  VI.,  it  was  provided,  that 
no  subpoena  should  issue,  until  the  party  applying  for  it  had  given  se- 

(o)  Legal  estates  may  be  described,  as  those  which  are  fully  recognised,  protected  and  en- 
forced in  courts  of  law ;  while  equitable  estates,  for  the  most  part,  require  an  appeal  to  courts 
of  equity,  or  those  having  equitable  jurisdiction. 


CHAP.  XX.] 


USES  AND  TRUSTS. 


291 


curity  to  pa}'',  if  he  should  fail  in  the  suit,  all  damages  and  expenses  in- 
curred by  the  defendant. 

4.  Lord  Bacon,  in  defining  a  use,  says,  "it  is  no  right,  title  or  inter- 
est in  law," — neither  jus  in  re  nor  ad  rem,  neither  an  estate  nor  a  de- 
mand ;  but  something  unknown  to  the  common  law,  and  for  which 
therefore  it  furnished  no  remedy. (1) 

5.  lie  proceeds  to  say,  that  a  use  is  "  dominium  ftduviarium,^^  an 
ownersliip  in  trust;  and  therefore  a  use,  and  an  estate  or  possession, 
dilfcr  rather  in  reference  to  the  forum  which  takes  cognizance  of  them, 
than  the  nature  of  the  thing, — one  being  in  court  of  law,  the  other  in 
court  of  conscience. 

6.  A  use  was  no  property  at  law,  because  it  arose  frori^  a  mere  decla- 
ration, and  not  from  livery  of  seizin,  which  was  absolutely  necessary  to 
create  a  freehold  estate.  Thus,  it  was  verj^  early  held,  that  if  A  enfe- 
offed B  to  the  use  of  himself.  A,  the  feoffer,  should  have  nothing,  at 
law,  against  his  own  feolfment.  So  if  the  cestui  que  use  entered  upon 
the  land,  tlie  feoffee  to  use  might  have  an  action  of  trespass  against  him  ; 
while,  if  the  latter  entered  and  ousted  the  former,  he  had  no  remedy  at 
law,  but  his  only  redress  was  in  Chancery.  The  cestui,  although 
usually  in  possession,  was  a  mere  tenant  at  sufferance,  and,  if  he  made 
a  lease,  the  lessee  might  plead  that  he  had  no  estate  in  the  land.(2) 

7.  Chancery  at  first  interfered  in  favor  of  a  cestui  que  use,  only  by  com- 
pelling the  feoftee  to  pay  over  the  profits  to  him.  But  afterwards  it 
proceeded  to  require,  that  the  feoftee  should  convey  the  land  to  the 
cestui,  01'  such  person  as  he  should  select;  and  also  defend  the  title 
against  any  adverse  claimant.  Hence  it  was  said,  that  the  three  inci- 
dents of  a  use  were  pernancy  of  the  profits,  execution  of  estates,  and  defence 
of  the  land. 

8.  It  was  still  held,  however,  that  the  land  was  subject  to  all  liabili- 
ties and  incumbrances  in  the  hands  of  the  ieoffee,  as  if  he  were  the  only 
party  interested;  as,  for  instance,  to  dower  and  forfeiture.  And  the 
cestui' s  ]'ight  in  equity  was  held  to  be  not  issuing  out  r^ the  land,  like  a 
rent  or  right  of  common,  but  collateral  to  it ;  and  therefore  not  charge- 
able upon  the  land,  into  whose  hands  soever  it  might  pass,  but  only  by 
reason,  and  during  the  continuance,  of  confidence  in  the  person  and  p)ri- 
vitij  of  esiate.{S) 

9.  Confidence  in  the  person  at  first  extended  oidy  to  the  original  feof- 
fee; and  it  was  held,  that  even  liis  heir,  after  his  death,  was  not  liable 
to  the  use  in  Chancery,  but  could  only  be  charged  by  a  bill  in  Parlia- 
ment. But,  as  early  as  the  reign  of  Henry  VI.,  it  was  settled  that  the 
liabiHty  extended  not  only  to  the  original  feoffee,  but  to  all  who  came 
to  the  estate  in  the  per,  either  ivithout  consideration,  or  having  notice  of 
the  use.  Thus,  an  heir  of  the  feoffee  was  charged  with  the  use.  So  a 
purchaser  from  the  feoffee,  if  he  either  paid  no  consideration  and  had 
no  notice,  or  if  he  paid  a  consideration  and  had  notice.(4) 

10.  Tlie  requisition  of  privity  of  estate  demanded,  in  order  to  a  con- 
tinuance of  the  use,  that  there  should  be  not  merely  possession  of  the 
same  land,  but  a  continuance  of  the  same  estate  in  that  laud,  which  was 


(1)  ClnKileigh's  case,  1  Rep.  140  a. 

(2)  4  Kdw.  IV".,  3;   1  Rep.  140  a. 

(3)  1    Rep.  122  a;    Dalaniere  v.   Barnard, 
Plow.  352  ;  Dillon  v.  Fraine,  Poph.  71. 


(4)  Keilw.  42  ;  Bro.  Abr.  Feoffment  al  Use, 
pi.  10;  Ohudleigh's,  1  Rep.  122  b;  Gilb.  178 
-9;  4  Pick.  71. 


292 


USES  AND  TRUSTS. 


[CHAP.  XX, 


held  by  the  original  feoffee.  Hence,  a  person  holding  the  land,  but  not 
claiming  in  tho  per,  even  though  he  took  with  notice,  was  not  charge- 
able ;  as,  for  instance,  a  disseizor,  the  lord  holding  by  escheat,  a  tenant 
by  the  curtesy,  or  tenant  in  dower;  all  of  whom  claimed  by  a  title 
paramount,  and  not  the  same  estate  with  the  feoffee.(l) 

11.  Any  person,  who  was  capable  of  taking  lands  by  feoffment,  might 
also  be  a  feoffee  to  uses.  And  even  those  avTio  were  legally  disabled  to 
bind  themselves,  as  infants  and  married  women,  if  enfeoffed  to  uses, 
Avould  be  compelled  in  Chancery  to  execute  them ;  because  such  per- 
sons might  inherit  from  a  feoffee,  and  would  then  clearly  be  chargeaVjle ; 
and  the  execution  of  the  use  was  deemed  to  be  made  by  the  feoffor, 
through  his  agent  the  feoffee.  But  a  corporation  could  not  be  seized 
to  uses ;  not  being  subject  to  any  compulsory  Chancery  process,  and 
being  supposed,  as  a  matter  of  course,  to  hold  to  its  own  use. (2) 

12.  It  was  remarked  by  Lord  Bacon,  "  uses  stmd  upon  their  own 
reasons,  utterly  differing  from  cases  of  possession  ;"  and  the  remark  is 
illustrated  by  the  following  rules  and  principles.(3) 

13.  A  use  being  recognized  only  in  Chancer}^,  which  was  governed 
to  a  great  degree  by  the  rules  of  the  civil  law,  it  was  held,  conformably 
to  one  of  those  rules,  "  ex  nudo  pacto  non  oritur  actio,''^ — that  no  use 
could  be  created  without  a  good  or  valuable  consideration ;  for  other- 
wise it  was  doniim  gratuitum.  But  this  principle  seems  to  have  been 
applicable  only  to  such  conveyances  as  did  not  carry  with  them  a 
change  of  possession,  such  as  a  covenant  to  stand  seized,  or  bargain  and 
sale,  which  were  mere  contracts.{4:) 

14.  In  other  particulars,  also,  a  use  was  not  subject  to  the  rules  of 
the  common  law.  Not  being  an  estate,  it  was  exempt  from  the  burdens 
and  incidents  of  feudal  tenure.  Thus,  it  was  not  forfeitable  for  crimes. 
For  tiie  same  reason,  it  was  not  extendible  by  process  of  law  ;  and,  being 
neither  a  chattel  nor  hereditament,  was  not  assets  to  the  executor  or  the 
heir.  So  there  was  neither  curtesy  nor  dower  in  a  use,  because  the 
cestui  had  no  legal  seizin. (5) 

15.  A  use,  th  'Ugh  held  to  be  a  mere  right,  was  still,  unlike  other 
clioses  in  action,  subject  to  alienation  ;  because,  as  no  action  at  law  lay 
to  enforce  it,  the  mischiefs  of  maintenance  could  not  arise  from  such 
transfer.  (6) 

16.  A  use  might  be  transferred  by  any  deed  or  writing,  and  without 
livery  of  seizin,  of  which,  from  its  very  nature,  it  was  of  course  not 
susceptible. 

17.  Contrary  to  the  rule  of  the  common  law,  a  use  might  be  declared 
to  a  person  who  was  no  party  to  the  deed  which  created  it.(7) 

18.  St.  1  Eich,  III.  ch.  1  empowered  a  cestui  to  alienate  the  legal 
estate  without  consent  of  the  feoffee.  This  act  was  passed  to  prevent 
feoffees  from  entering  upon  the  land,  after  a  transfer  by  the  cestuis, 
which  had  often  previously  been  done,(8) 

19.  A  use  miglit  be  limited  without  those  technical  words  of  limita- 
tion which  are  necessary  in  a  common  law  conveyance.     Thus,  a  fee- 


(1)  1  Rep.  139  h.  122  a. 

(2)  Bac.    Read.  58;  4   Kent,   28G ;    Plow. 
102. 

(.3)  Bac.  Law  Tracts.  310. 

(4)  Bac.  Read,  li  ;  4  Kent,  286. 


(5)  Co.  Lit.  272  a; 
374  b 

(0)   Bac.  Read.  16. 
(7)   Read.  14. 
(8j   1  Cruise,  270. 


1  Rep.  121  b:   Co.  Lit. 


CHAP.  XX.] 


USES  AND  TRUSTS. 


293 


simple  would  pass  without  the  word  lidrs.  So,  a  freehold  might  be 
limited  to  commence  in  futuro ;  or  a  contingent  freehold  remainder, 
upon  a  precedent  estate  less  than  freehold,  because  the  freehold  estate 
of  the  feoifee  was  sufficient  to  support  such  remainder.(l) 

20.  A  use  mi"-ht  be  so  limited  as  to  be  revocable  by  the  will  of  the 
(Trantor  and  "'ive  place  to  such  new  uses  as  he  shouM  aj3]^)oiirt ;  or  it 
might  be  so  iTmited  as  to  change  from  the  original  cestui  que  use  to 
another  person,  upon  the  happening  of  some  future  event;  even  though 
the  first  limitation  were  in  fee,  and,  therefore,  in  case  ot  a  legal  estate, 
would  preclude  any  further  disposition.  Thus,  the  limitation  might  be 
to  A  and  his  heirs  till  B  should  pay  him  such  a  *am,  then  to  B  and 
his  heirs.  The  reason  of  this  distinction  was,  that  a  legal  estate,  being 
created  by  livery,  could  be  defeated  only  by  the  corresi)onding  act  of 
entry;  and  a  charge  required  a  corresponding  discharge;  while  a  use, 
arising  from  a  mere  declaration,  was  subject  to  be  changed  in  the 
same  way. (2) 

21.  A  use  was  devisable,  though  lands  at  that  time  were  not;  and 
this  was  one  reason  for  the  large  number  of  limitations  to  uses.  But 
the  devise  of  a  use  by  a  married  woman  was,  in  a  very  early  case,  held 
void  even  in  Chancery.(o) 

22.  Uses,  though  differing  in  most  points  from  legal  estates,  were 
subject  to  the  same  rules  of  deseent.(4:) 

23.  The  doctrine  of  uses,  as  above  described,  although  productive  of 
some  convenience,  in  enabling  persons  to  convey  their  lauds  with  less 
restraint  and  technicality  than  they  could  otherwise  do,  was  found  to 
open  a  door  for  very  great  and  serious  mischiefs.  Creditors  were  de- 
frauded by  secret  conveyances ;  husbands  were  deprived  ot  curtesy, 
and  wives'of  dower ;  and  titles  became  so  private,  variable  and  con- 
fused, that  it  was  difficult  for  a  legal  claimant  of  land  to  determine 
against  whom  he  should  maintain  his  action.  To  remedy  these  and 
the  like  evils,  several  successive  statutes  were  passed,  from  the  reign 
of  Edw.  III.  to  that  of  Henry  VII.,  subjecting  uses  to  legal  process  for 
the  debts  of  the  cestui,  and  to  the  feudal  incidents  and  exactions  of 
wardship  and  relief,  where  the  cestui  died  without  making  a  will.(5) 
These  statutes,  however,  proved  ineffectual  to  remedy  the  evils  com- 
plained of.  To  avoid  the  feudal  burdens  consequent  upon  descent, 
devises  became  mischievously  frequent.  At  length,  after  an  unsuccess- 
ful attempt  lour  years  previously  by  the  king,  to  procure  the  passage 
of  such  a  law,  the  statute  of  uses,— 27  Henry  VIII.  c.  10,— was  enacted, 
with  the  title  of  "  an  act  concerning  uses  and  wills."  This  act  will  be 
considered  in  the  next  chapter. 


(1)  Slielley'8  case,  1  Rep.  101  a,  135  a. 

(2)  1  Crui.se,  368;  Bro.  Abr.   Feoffment  al 
Use,  30 ;  Bac.  Read.  18. 


(3)  Bac.  Read.  20 ;   1  Rop. 
18  Edw.  IV. 

(4)  Co.  Lit.  14  b;   Gilb.  17. 

(5)  1  Cruise,  369. 


123  b;   Mich 


294 


USES  AND  TRUSTS. 


[CHAP.  XXI. 


CHAPTER  XXI. 

USES    AND    TRUSTS.      STATUTE    OF    USES,    CONSTRUCTION   AND    EFFECT 

THEREOF. 


L  Terms  of  the  statute. 

2.  Adopted  in  tlie  United  States. 

3.  Instantaneous  seizin  of  trustee. 

4.  AVlio  may  be  seized  to  uses. 

7.  AViiat  estate  may  be  held  to  uses. 

9.  There  must  be  a  cestui  "  in  esse.'" 

10.  What  estate  a  ceitomay  take. 

12.  Feoffee  and  cestui  must   be  different 


persons;    construction,  where  they 
are  the  same. 

14.  Exceptions  to  the  rule. 

15.  There  must  be  a  use  in  esse. 

16.  Actual  seizin  vests  in  cestui. 

17.  Estate  of  feoffee  will  not  merge. 

20.  Limitations  to  uses,  how  far  subject  to 

common  law  rules. 
22.  Implied  and  resulting  uses. 


1.  Statute  27  Henry  YIIL,  c.  10,  called  the  Statute  of  Uses,  and 
referred  to  at  the  end  of  the  last  chapter,  recites,  that  by  the  cornmon 
law,  lands  could  not  be  passed  by  will,  but  only  by  livery  of  seizin  ; 
but  that  divers  subtle  practices  had  been  introduced,  in  the  form  of 
fraudulent  conveyances  and  assurances,  and  of  last  wills,  whereby  heirs 
were  disinherited,  lords  deprived  of  their  dues,  husbands  and  wives  of 
curtesy  and  dower,  and  perjuries  committed.  The  statute  then  pro- 
ceeds to  enact,  that  where  any  person  was  or  should  be  seized  of  any 
honors,  manors,  lands,  tenements,  rents,  services,  reversions,  remainders, 
or  other  hereditaments,  to  the  use,  confidence,  or  trust  of  any  person  or 
body  politic;  the  latter  should  have  the  legal  seizin  and  possession, 
nominally  given  to  the  former,  and  corresponding  to  the  use,  trust  and 
confidence  held  previously  to  the  statute  in  lands  so  limited;  and, 
where  lands  were  limited  to  several  persons  to  the  use  of  a  part  of  them, 
the  latter  alone  should  have  the  seizin  and  possession. 

2,  The  English  statute  of  uses  is  almost  universally  adopted  in  this 
country.  It  is  substantially  re-enacted  in  Illinois,  Missouri  and  South 
Carolina.     But  in  Ohio,  it  is  said  not  to  be  in  force.(l)(a)  , 

8.  Since  this  statute,  and  conformably  to  its  intent,  one  person,  taking 
lands  to  the  use  of  another,  gains  only  an  instantaneous  seizin,  which 
subjects  them  to  no  incumbrances  in  his  hands.;  but  the  legal  estate 
vests  immediately  in  the  cesim.{2) 

4.  The  same  persons  may  be  seized  to  uses  now,  that  could  have  been 
so  seized  before  the  statute. 

5.  In  England,  the  king  or  queen  cannot  be  seized  to  uses.  Thus, 
where  a  man  received  a  fine  of  lands  to  the  use  of  the  conusor,  after 
the  former  had  committed  treason ;  the  cestui  then  conveyed  to  a  third 
person,  and  the  conusee  was  afterwards  attainted  ;  it  was  held,  by  very 
distinguished  laAvyers,  that  the  queen  (Elizabeth)  w^ould  hold  the  lands 


(1)  Illin.  Rev.  L.  130;  Mi.sso.  St.  119;  2 
Brev.  Dig.  313;  French  v.  French,  3  N.  H. 
256 ;   Walk.  Intro.  310 ;  Thompson  v.  Gibson,  J 


2  Ohio,  339;  Helfeinstine  v.  Garrard,  7.  270. 
(2)  1  Cruise,  375  ;  Brent's  case,  2  Leon.  18. 


(a)  In  Virginia,  it  is  said,  under  the  statutes  of  1792,  a  use  is  executed,  only  in  deeds  of 
bargain  and  sale,  lease  and  release,  and  covenants  to  stand  seized.  1  Loni.  Dig.  188. 
"Whether  the  statute  is  in  force  in  Vermont,  qu.     "Williston  v.  "White,  11  Verm.  40. 


CHAP.  XXI.]  USES  AND  TRUSTS.  295 

bj  forfeiture,  clear  of  the   use.      The  queen,  however,   relinquished 
them  to  the  ceslui.{l) 

6.  Under  the  words  of  the  statute,  "  any  person  or  persons,"  a  cor- 
poration cannot  be  seized  to  uses,  nor  an  alien.  And  where  lands  are 
conveyed  to  a  citizen  and  an  •alien  to  the  use  of  anothei*,  the  share  of 
the  alien  shall  be  forfeited. (2) 

7.  Uudcr  the  word  aeizal  in  this  statute,  a  jierson  mAy-  hold  any  es- 
tate of  freehold  to  uses.  If  the  estate  is  less  than  a  fee-si nij.)le,  the  use 
will  continue  while  the  estate  lasts,  but  no  longer.  Thus  it  is  said  to  be 
now  settled,  though  formerly  doubted,  that  a  tenant  in  tail  may  be 
seized  to  uses.  If  the  use  is  in  fee,  it  is  a  fee-simple,  determinable  upon 
the  death  of  the  tenant  in  tail  without  issue.  So,  a  tenant  for  life  may 
be  seized  to  a  use,  which  will  terminate  at  his  death. (8)(«) 

8.  Under  the  words  of  the  statute,  any  kind  of  real  property,  whether 
corporeal  or  incorporeal,  in  possession,  remainder  or  reversion,  may  be 
conveyed  to  uses,  provided  the  estate  is  in  the  ownership  of  tlie  grantor 
at  the  time  of  conveyance.  And,  if  the  estate  is  a  rent,  it  may  be  so 
limited,  though  created  de  novo  by  the  conveyance.(4)(/j) 

9.  A  use  requires  a  cestui  in  esse,  and  cannot  therefore  take  effect,  if 
limited  to  a  person  not  in  esse,  or  an  uncertain  person. (5) 

10.  A  cestui  may  take  any  estate  known  to  the  law.(()) 

11.  All  persons  may  be  cestuis  que  use,  who  are  cipable  of  holding 
lands  at  common  law.     Corporations  are  expressly  named  in  the  statute. 

12.  In  general,  the  statute  of  uses  is  not  applicable,  unless  the  fe- 
offee to  uses  and  cestui  are  different  persons.  Where  the  same  person 
is  both  feoffee  and  cestui,  he  will  never  take  by  the  statute,  except  there 
be  a  direct  impossibility  or  impertinency  for  the  use  to  take  effect  by 

(1)  Pirab's  case,  Moo.  196  ;  Co.  Lit.  12  a,  i  Fox  v.  Phelps,  20  Wond.  437  ;  Payne  v.  Sale, 
n.  7.  t  2  Dev.  kB.  455. 

(2)  Bac.  Read.  42,  57  ;  King  v.  Boys,  Dyer,  |      (4)  Yeiverion  v.  Telverton,  Cro.  Eliz.  401 ; 


2S3 

(3)  Jenkins  v.  Young.  Cro.  Car.  231;  Read. 
57  ;  Plow.  557  ;  Co.  Lit.  19  b;  1  Cruise,  376; 
Dyer,  186  a ;  Crawley's  case,   2  And.  130 ; 


22  Vin.  217;   Read.  43. 

(5)  1  Cruise,  330. 

(6)  lb. 


(a)  On  the  other  hand,  if  the  party  seized  to  uses  takes  a  fee,  the  cestui  may  do  the  same 
•without  words  of  inheritance.  Devise  to  A  and  B,  and  their  heirs,  to  the  use  of  C  for  life, 
after  his  death,  to  the  use  of  D  and  E,  as  tenants  in  common.  Held,  D  aud  E  took  a  fee- 
simple.     Knight  V.  Selby.  3  Man.  &  G.  92. 

If  one  take  an  estate  in  tnist  for  anotiicr  and  his  heirs,  tlie  legal  estate  of  the  trustee  is 
commensurate  with  tlie  equitable  estate  of  the  cestui  que  trust,  which  is  a  fee-simple.  New- 
hall  V.  Wheeler,  7  Mass.  189. 

The  trustee  takes  an  estate  large  enough  for  the  purposes  of  his  trust,  and  no  larger. 
Norton  v.  Norton,  2  Sandf  296. 

In  1794,  A  executed  a  deed  to  B  and  six  others,  as  "trustees  of  Methodi.st  Society;  ha- 
lendum  to  SA\i\  grantees,  in  their  capacity  aforesaid  of  trustees;"  the  cestui  que  trust  be'm^ 
an  unincorporated  association.  In  1848,  B  became  the  sole  survivor  of  such  grantees;  his 
title  having  never  been  e.vtinguislied,  by  any  release  or  other  act  of  his.  After  the  grant, 
the  Society  used  and  occupied  the  premises,  for  more  than  fifteen  years,  in  support  and  fur- 
therance of  the  object  contemplated  by  the  deed.  In  an  action  of  ejectment,  brought  by  B, 
against  members  of  the  Metimdist  Societ}',  assuming  to  act  officially,  it  was  held,  1.  Tiiat 
B  and  the  other  grantees  had  a  freehold  estate  of  such  a  duration  as  was  necessary  to  effect 
the  purposes  of  the  trust;  2.  That  the  title  of  B  bad  not  been  divested  by  the  occupation 
of  the  defendants,  such  occupation  not  having  been  adverse  to  B's  title.  Burrows  v.  Holt, 
20  Conn.  459. 

(i)  Limitations  in  trust  to  preserve  contingent  remainders,  when  such  trusts  were  legal, 
were  not  executed  by  the  statute  of  uses.     Vauderhoydea  v.  Crandall,  2  Deuio,  9. 


296 


USES  AND  TRUSTS. 


[CHAP.  XXI. 


the  common  law.     The  words  of  the  statute  are,  "  seized  to  the  use  of 
some  other  person."(l) 

VS.  Hence  the  principle  above  stated,  that  the  estate  of  the  cestui 
cannot  exceed  that  of  the  feoffee,  is  inapplicable  to  this  case.  Tims, 
where  a  conveyance  is  made  to  a  man  and  wife,  habendum  to  the  use 
of  them  and  the  heirs  of  their  bodies;  they  take  an  estate  tail,  as  they 
would  if  the  words  "the  use  of,"  had  been  omitted.  It  is  not  a  use  di- 
vided from  the  estate,  but  the  use  and  estate  go  together.  It  is  no  hra- 
itation  of  the  use,  but  a  limitation  of  the  estate.  So,  a  conveyance  to 
one,  to  hold  to  him  and  his  heirs,  "to  the  use  and  behoof"  of  him  and  his 
heirs  forever,  passes  the  fee  by  the  common  law;  the  words  meaning 
only  "for  his  and  their  sole  benefit,"  and  indicating  in  how  ample  and 
beneficial  a  manner  the  grantee  is  to  take  the  estate,  without  return 
of  any  service  whatever  to  the  grantor.  The  same  construction  is 
given,  in  case  of  a  conveyance  to  one  and  his  assigns,  habendum  to  him 
and  his  assigns,  to  the  only  use  and  behoof  of  him  and  his  assigns  du- 
ring his  life  ;  or  a  conveyance  to  A,  to  hold  to  him  and  his  heirs,  to 
the  only  use  of  them  during  the  lives  of  B,  C  and  D.(2) 

14.  But  there  are  other  cases  of  similar  character,  where  a  use  is  exe- 
cuted by  the  statute,  in  order  to  satisfy  the  parties'  intention.  Thus, 
where  a  conveyance  is  made  to  a  person  and  his  heirs,  to  the  use  of  him 
and  the  heirs  of  his  body ;  or  where  one  covenants  with  another,  that 
he  and  his  heirs  will  stand  seized  to  the  use  of  himself  and  the  heirs  of 
his  body ;  or  to  the  use  of  himself  for  life,  remainder  over  in  fee ;  in 
each  of  these  cases,  the  use  is  executed  by  the  statute  according  to  the 
limitation. (3) 

15.  Finally,  there  must  be  a  use  in  esse,  in  possession,  remainder  or 
reversion. (4) 

16.  It  was  formerly  supposed  that  the  statute  of  uses,  being  a  mere 
act  of  Parliament,  transferred  to  the  cestui  que  use  only  a  civil  seizin,  or 
seizin  iyi  law.  But  the  well-established  doctrine  now  is,  founded  upon 
the  words  "  shall  be  in  lawful  seizin,  estate  and  possession  to  all  intents, 
constructions  nnd  purposes  in  the  laAV,"  that  the  actual  possession  of  the 
land  vests  in  the  cestui.{5) 

17.  By  virtue  of  a  saving  clause  in  the  statute,  where  a  feoffee  to 
uses  previously  had  an  estate  in  the  same  land,  such  estate  shall  not  be 
merged  or  destroyed  by  the  conveyance  to  uses.  It  is  said,  the  inten- 
tion of  that  statute  was  not  to  destroy  prior  estates,  but  to  preserve 
them. (6) 

18.  And  where  land  was  first  leased  for  years,  and  afterwards  con- 
veyed to  the  lessee  and  others  in  fee,  to  their  use,  to  the  intent  that  a 
common  recovery  shall  be  had  against  them  to  the  use  of  a  stranger, 
which  was  afterwards  done ;  held,  although  there  was  a  temporary 
merger  till  the  recovery  was  suffered,  yet,  when  this  took  place,  it  had 
relation  back  to  the  conveyance,  and  restored  the  term  for  years.(7) 

19.  Upon  the  same  principle,  it  seems,  where  the  subsequent  convey- 


(1)  Eead.  63. 

(2)  Jenkins  v.  Toung,  Cro.  Car.  230;  Pyer, 
186  a,  n. ;  Meredith  v.  Jones,  Cro.  Car.  244; 
1  Gilb.  Rep.  16-17  ;  2  Bootii's  Caa  and  Opin. 
281;  Wilson  v.  Cliebhire,  1  M'Cord's  Cha. 
233. 

(3)  Read.  63 ;  Sammes'  case,  13  Rep,  56. 


(4)  Chudleigh's  case,  1  Rep.  126  a. 

(5)  Co.  Lit.  266  b;  Gilb.  Uses,  230;  Bliss 
V.  Smith,  1  Alab.  (N.  S.)  273. 

(6)  1  Cruise,  385 ;  Ferrers  v.  Fermor,  Cro. 
Jac.  643. 

(7)  Ferrers  v.  Fermor,   Cro.    Jac.   643;  1 
Ventr.  195  ;  Fountain  v.  Coke,  1  Mod.  107. 


CHAP.  XXL] 


USES  AND  TRUSTS. 


297 


ance  to  uses,  in  England,  is  by  lease  and  release,  (a  form  not  practiced  in 
the  United  States,)  this  lease,  although  prior  to  the  release,  does  not 
merge  the  old  estate  for  years;  although,  by  accepting  it,  the  lessee  ad- 
mits the  lessor's  power  to  make  a  lease.  The  lease,  being  made  ex- 
pressly to  enable  the  lessee  to  accept  a  release  to  uses,  shall  not  be  con- 
strued as  made  to  his  own  use;  and,  if  the  old  estate  t(5r  years  -were 
extinguished,  it  is  revived  by  the  release.(l) 

20.  The  i)reamble  to  the  statute  of  uses  sets  forth  an  intention  to  re- 
store the  ancient  common  law,  and  to  extirpate  such  limitations  and 
conveyances  as  had  grown  up  under  the  form  of  uses,  inconsistent  there- 
with. Hence  it  was  at  first  held,  that,  under  that  statute,  uses  must  be 
limited  according  to  the  rules  of  the  common  law  ;  so  that  no  uses  of 
inheritance  would  be  created,  without  the  same  technical  expressions 
required  in  common  law  conveyances.  In  other  words,  the  estate  in  the 
use,  when  it  became  an  interest  in  the  land  under  the  statute,  became 
liable  to  all  the  rules  of  common  law  estates.(2) 

21.  But,  on  the  other  hand,  the  quaUties,  which  had  attended  uses  in 
equity,  followed  them  when  they  became  an  estate  in  the  land  itself. 
The  complex  and  modified  interests  annexed  to  uses  were  engrafted 
upon  the  legal  estate.  Hence,  the  same  departures  from  the  common 
law,  in  regard  to  the  limitation  of  estates,  have  been  allowed  since  the 
statute  as  Isefore.  To  these  reference  has  already  been  made;  and  they 
will  hereafter  be  more  fully  considered,  under  the  titles  of  Remainder, 
Powers  and  Devise.  It  is  sufficient  to  state  here,  in  general,  that  a  fee 
in  a  use  may  be  limited  upon  a  fee  ;  that  a  freehold  estate  ma}'  be  made 
to  commence  infuturo,  without  any  preceding  estate  to  support  it ;  and 
that  the  party  who  creates  the  uses  may  reserve  to  himself  a  power  of 
revoking  them,  and  appointing  new  uses  in  their  place.  It  is  said,  that 
in  the  two  former  cases,  the  uses,  being  limiteci  to  take  eflect  upon  the 
happening  of  some  contingency  specified  in  the  deed,  come  in  esse  by 
act  of  God  ;  while  in  the  latter  case  they  arise  by  the  act  of  man.  Both 
are  future  or  contingent  uses  till  the  act  is  done;  and  afterwards,  hy  the 
operation  of  the  statute,  actual  estates. (3) 

22.  Both  before  and  since  the  statute  of  uses,  if  a  person  convey 
land  without  consideration,  and  without  anj^thing  to  show  a  different 
intent  ;  the  conveyance  is  held  to  be  made  to  his  own  use,  and  not  that 
of  the  grantee  ;  and  such  a  use  is  executed  by  the  statute,  so  that  in  fact 
no  estate  passes  from  the  grantor,  but  he  remains  seized  as  before.  The 
law  will  not  presume  that  a  man  intends  to  give  awaj'  his  estate.  Such 
a  use  is  called  a  resulting  use. (4) 

2.3.  It  is  said,  that  so  much  of  the  use,  as  the  owner  of  the  land  does 
not  dispose  of,  remains  in  him. (5)  Thus,  in  England,  if  he  levy  a  fine 
or  suffer  a  recovery,  without  consideration,  and  without  declaring  any 
uses,  the  whole  estate  remains  in  him  as  before,  whether  in  possession 
or  reversion ;  while,  if  cei'tain  uses  are  declared,  he  retains  all  that  is 
left  of  the  old  estate,  alter  these  uses  are  satisfied.  So,  if  one  convey 
land  to  the  use  of  such  person   or  persons,  and  for  such  estate  and  es- 


(1)  Cook  V.  Fountain,  Bac.  Abr.  Lease  R. 

(2)  1  Rep.  129  b;  Corbet's  case,   1   Rep. 
87  b. 

(3)  4  Kent.  289  ;  lb.  290  ;  Hopkins  v.  Hop- 
kins, 1  Atk.  591  ;  1  Cruise,  393. 


(4)  Abbot  f.  Burton,  11   Mod.  182;  Djer, 
14f.  b. 

(5)  Co.  Lit.  23  a,  271  a;  Dyer,  166a;  Arm- 
strong V.  Wolsey,  2  Wil.  19. 


298 


USES  AND  TRUSTS. 


[CHAP.  XXI. 


tates,  as  he  shall  appoint  by  his  will,  or  to  the  use  of  himself  and  his 
intended  wife  after  marriage ;  till  such  appointment  is  made,  or  till  such 
marriage  occurs,  the  use  results  to  him.(l) 

24.  The  use  will  result,  according  to  the  estate  which  the  parties  who 
create  or  declare  it  had  in  the  land,  being  but  a  trust  and  confidence, 
and  therefore  not  subject  to  technical  estoppels  and  conclusions.  Thus, 
if  husband  and  wife  join  in  a  conveyance  of  her  land,  the  use  results  to 
her  alone.  So  in  case  of  joint  tenants.  So,  if  a  particular  tenant  and 
the  reversioner  join  in  the  deed,  each  takes  back  his  former  respective 
estate  ;  and,  if  the  former  declare  uses  and  not  the  latter,  a  use  results 
to  the  latter  alone.  And  if  one  having  no  interest  in  the  land  joins  the 
owner  in  the  deed,  nothing  results  to  the  former.(2) 

25.  If  uses  are  declared,  but  to  take  effect  from  and  after  the  death 
of  the  grantor,  a  use  results  to  him  for  life,(8) 

26.  A,  in  consideration  of  the  marriage  of  B,  his  son,  conveys  to  the 
use  of  B,  for  life,  remainder  to  B's  wife  lor  life,  remainder  to  B's  first 
and  other  sons  in  tail,  remainder  to  the  heirs  male  of  the  body  of  A. 
Inasmuch  as  the  estates  to  B,  his  wife  and  issue,  may  terminate  before 
A's  death,  a  use  results  to  him  expectant  upon  such  termination.(4) 

27.  But  if  an  intermediate  remainder  is  limited  to  trustees,  in  trust 
to  support  contingent  remainders,  but  to  permit  the  grantor  to  receive 
the  rents  and  profits  fur  life  ;  no  use  results  to  him.(5) 

28.  Where  a  use  expressly  declared  is  the  same  which  would  result 
to  the  grantor,  the  declaration  is  void,  and  he  takes  a  resulting  use. 
Thus,  where  a  remainder  is  limited  to  the  use  of  his  own  right  heirs, 
he  retains  a  reversionary  interest,  the  limitation  being  void. (6) 

29.  Eesulting  uses  arise  from  those  conveyances,  which  operate  by 
a  change  of  possession  ;  such  as  a  feoftraent,  or,  in  the  United  States,  a 
grant.  Substantially  the  same  principles  apply  to  those  conveyances, 
in  which  the  owner  nominally  does  not  part  with  possession,  and  of 
which  the  only  one  known  in  this  country,  is  a  covenant  to  stand  seized. 
In  this  case,  so  much  of  the  use  as  is  not  expressly  disposed  of  re- 
mains in  the  covenantor,  under  the  name  of  a  use  by  implication. 
Thus,  where  one  covenants  with  another,  to  stand  seized  to  the  use  of 
the  lieirs  of  his  own  body  by  a  certain  wife,  as  he  can  have  no  heirs 
while  living,  a  use  by  implication  remains  to  him  for  life.  So,  if  no 
use  arises  for  w^ant  of  consideration  or  any  other  cause,  a  use  by  impli- 
cation arises  to  the  covenantor.(7) 

30.  No  use  will  result,  where  any  circumstance  show^s  a  manifest 
intent  to  the  contrary.  Thus,  where  a  recovery  is  suffered,  or  a  con- 
veyance is  made,  to  the  intent  or  on  condition,  that  the  party  receiving 
the  land  shall  make  an  estate  limited  in  a  certain  way  ;  no  use  results, 
because  then  he  would  be  unable  to  make  an  estate,  as  provided  for. 
But,  if  this  is  not  done  in  reasonable  time,  it  seems,  a  use  will  result.(8) 


(1)  Co.  Lit.  23  a,  271a;  Dyer,  166  a; 
Clere's  case.  G  Rep.  17  b;  Woodliff  v.  Drury, 
Cro.  Kliz.  439. 

(2)  Bec'kwith'a  case,  2  Rep.  58  a;  Dyer, 
146  b ;  Davis  v.  Speed,  Show.  Cas.  in  Pari. 
104;    Roe  v  Popiiam,  Doug.  24. 

(3)  Penliay  v.  Hurrell,  2  Vern.  370  ;  2 
Free.  258. 

(4J  Wills  V.  Palmer,  1  Cruise,  295. 


(5)  Tippin  v.  Coson,  4  Mod.  380 ;  1  Lord 
R?y.  33. 

(6)  Read  V.  Errington,  Cro.  Eliz.  321; 
Fenwick  v.  Mitfortli,  Moo.  284;  Slade's  case, 
2  Rep.  91  b. 

7)  Pil)us  V.  Mitford,  1  Vent.  327. 
(8)  Hummerston's  case.  Dyer,  166  a,  n.  9; 
Wiuuiugton's  case,  Jenk.  Cent.  6  Ca.  44. 


CHAP.  XXI.] 


USES  AND  TRUSTS. 


299 


31.  So,  where  the  grantee  is  to  make  an  estate  to  such  person  as  the 
grantor  shall  name,  and  it  is  stipulated  that  he  shall  be  seized  to  no 
other  use  than  the  one  specified  ;  the  grantee  holds  to  his  own  use  till 
an  appointment  is  made,  or,  if  the  grantor  dies  without  making  one,  to 
the  use  of  his  heirs. 

32.  As  resulting  uses  depend  upon  intention,  parol-evidcnce  is  ad- 
missible in  regard  to  such  intention.  The  statute  of  frauds,  requiring 
uses  to  be  proved  by  some  writing,  is  applicable  only  where  third  i)er- 
sons  are  beneficially  interested. (1) 

33.  No  use  will  result,  where  an  estate  is  expressly  limited  to  the 
grantor,  with  which  a  resulting  estate  would  be  inconsistent. 

34.  Thus  it  is  said,  if  a  feoffment  in  fee  be  made  to  the  use  of  the 
feoffor  for  life  or  for  years,  no  use  results,  because  the  particular  estate 
would  merge  in  the  fee,  if  they  were  held  by  one  person.  Otlicrwise, 
if  it  were  an  estate  tail,  and  not  for  life  or  for  years  ;  because  that  might 
exist  with  the  fee-si mple.(2) 

35.  So,  where  one  limits  an  estate  to  the  use  of  himself  for  years, 
remainder  to  trustees,  remainder  to  his  heirs  ;  no  estate  for  life  results 
to  him,  because  the  term  for  years  would  merge  therein. (3) 

36.  The  doctrine  of  resulting  uses  applies  only  to  conveyances  in  fee- 
simple  ;  not  to  the  creation  of  lesser  estates  in  tail,  for  life  or  for  years, 
though  made  without  consideration,  or  the  declaration  of  any  uses. 
This  distinction  is  founded  partly  upon  usage,  but  chiefly  upon  the 
principle,  that  the  tenure,  rent  and  liability  to  forfeiture,  incident  to 
these  lesser  estates,  constitute  of  themselves  a  sufficient  legal  considera- 
tion. The  same  rule  applies,  where  a  tenant  for  life  or  for  years  assigns 
his  estate.  And,  even  though  he  declares  the  use  of  part  of  the  estate, 
no  use  results  to  him  for  the  remainder.(4) 

37.  A,  a  tenant  for  life,  conveys  to  B,  to  the  use  of  B  for  the  life  of 
A  and  B,  and,  if  B  died,  living  A,  remainder  to  C.  B  dies,  living  A; 
C  enters,  leases  to  D,  and  dies,  living  A.  Held,  there  was  no  resulting 
use  to  A,  but  D  should  continue  to  hold  as  special  occupant,  during 
A's  life.(5) 

38.  As  a  devise  imports  a  bounty,  it  will  always  be  to  the  use  of  the 
devisee,  unless  a  contrary  intent  is  manifest,  and  no  use  will  result  to 
the  heirs  of  the  devisor.  But,  where  one  is  a  devisee  to  uses,  which 
from  any  cause  fail,  a  use  results  to  the  heir.(6) 


(1)  Roe  V.  Popliam,  Doug.  25  ;  Altham  v. 
Anplesea,  11  Mod.  214. 

(2)  Dyer,  111  b,  n.  46. 

(3)  Adams  v.  Savage,  2  Salk.  679;  Haw- 
ley  V.  Holland,  2  Abr.  Kq.  753;  22  Vin.  188, 
pi.  11. 


(4)  Bro.    Abr.   Feoffment  al    Use,   pi.  10; 
Dyer,  146  b;  Perk.  534-5. 

(5)  Castle  v.  Dod,  Cro.  Jac.  200. 

(6)  1  Cruise,  300. 


800 


TRUSTS.     EXPRESS  TRUSTS. 


[CHAP.  XXII. 


CHAPTER  XXII. 


TRUSTS .— E  XPRESS    TRUSTS. 


1.  Trusts  in  general. 

3.  Trusts  in  real  estate. 

4.  Uses  preferred  lo. 

5.  Classiflcalions  of  trusts. 

8.  How  created — use  upon  a  use. 

11.  Where  the  uses  require  a  legal  estate 

in  the  trustee. 

12.  Intention  of  parties. 

16.  Trusts  for  married  women. 
24.  Limitations   with  authority  to   mort- 
gage, &c. 


27.  Trust   ceases  when   the   objects    are 

effected. 
32.  Or  when  the  cestui  alienates. 
34.  Lands  subjected  to   payment  of  debts 

— not  necessarily  a  trust  estate. 

36.  Wliere  tlie  estate  is  less  than  freehold 
— a  trust. 

37.  Express  trust,  how  created — statute 
of  frauds,  &c. — need  not  be  declared, 
but  on]y  proved,  by  writing. 


1.  Trusts,  in  general,  constitute  one  of  the  most  common  relations 
known  to  the  law.  It  has  been  said  that  a  trust  exists,  wherever  one 
person  is  managing  the  funds  of  another.  A  trust,  technically  speaking, 
may  be  defined,  as  an  equitable  right,  title  or  interest  in  property,  dis- 
tinct from  the  legal  ownership  thereof.(l.) 

2.  Where  one  person  is  in  possession  of  property  which  he  is  bound 
to  deliver  to  another,  and  he  fails  to  do  so,  equity  raises  an  implied 
trust,  which  is  subject  to  the  rules  and  principles  of  trust  estates.  \Vhat- 
soever  is  the  agreement  concerning  any  subject,  real  or  personal,  though 
in  form  and  construction  purely  personal  and  suable  at  law  only,  yet 
in  equity  it  binds  the  conscience  and  raises  a  trust.(2)(a) 

3.  A  trust,  in  relation  to  real  estate,  is  a  use  not  executed  hy  the  statute 
of  uses.  Before  this  statute,  a  use  and  a  trust  were  substantially  the 
same  thing,  and  the  statute  itself  uses  the  Avords  synonymously. (6)    But 


(1)  Hulse  V.  Wright,  Wright,  61 ;  2  Story 
on  Equ.  230 ;  Crumpton  v.  Ballard,  1  Sliaw, 
N.  S.  251 ;  Garrard  v.  Lauderdale,  3  Sim.  1 ; 


Talhott  V.  Todd,  5  Dana,  199  ;  Pooley  v.  Budd, 
7  Eng.  L.  .t  Equ.  ^29. 
(2)  Wamburzee  v.  Kennedy,  4  Des.  477. 


(a)  A  testator  devised  to  each  of  his  five  children  a  large  amount  of  personal  and  real 
estate,  "  subject  to  the  payment  of  one  hundred  dollars"  each,  to  A,  when  she  sliould  arrive 
at  the  age  of  eighteen.  Held,  this  payment  was  a  trust  to  be  performed  by  the  children 
respectively,  and  not  a  duty  imposed  upon  the  executor.  Philips  i'.  Humphrey,  7  Ired. 
Equ.  206. 

Such  legacy  isa  lien  on  the  property;  and  a  purchaser  of  a  portion  of  it,  with  notice,  was 
held  liable  to  pay  to  A  the  proportion  of  her  legacy,  which  the  legatees  and  devisees  of 
whom  he  purchased  were  bound  to  contribute  respectively,  and  had  failed  to  do.     lb. 

Where  a  husband,  by  his  will,  gave  the  entire  proflts  of  all  his  estate  to  his  wife  during 
her  life,  and  entrusted  to  her  the  education  and  maintenance  of  his  children,  and  provided, 
also,  for  the  maintenance  and  education  of  his  children  "out  of  the  proflts"  of  his  estate; 
held,  the  wife  took  an  estate,  coupled  with  a  trust  for  the  education  and  support  of  the 
children;  that  the  property  was  not  liable  for  the  debts  of  the  wife;  and  that,  if  slie  refused 
to  protect  the  same  from  being  seized  for  her  debts,  it  was  the  duty  of  the  administrator  of 
her  husband  to  do  so.     Lucas  v.  Lockhart,  10  S.  &  M.  466. 

A  devisee,  who  accepts  a  devise  charged  with  debts  or  legacies,  is  in  equity  a  trustee,  to 
the  extent  of  such  charge,  and  equity  will  compel  the  execution  of  such  trust.  Mahar  v. 
O'Hara,  4  Gilm.  424. 

{h)  It  is  said,  the  word  "  trust"  referred  rather  to  the  person  in  whom  the  confidence  was 
reposed;  "use,"  to  the  party  beneficially  interested.     1  Steph.  329,  n. 

A  deed  to  A,  B,  and  C,  their  heirs,  &c.,  in  trust  for  the  only  proper  use  of  the  grantors 
during  life,  and  then  for  the  use  of  their  grandchildren,  conveys  the  legal  estate  as  an  exe- 
cuted use,  and  not  a  trust.     Jones  v.  Bush,  4  Harring.  1. 


CHAP.  XXII.] 


TRUSTS.    EXPRESS  TRUSTS. 


801 


the  judicial  construction  given  to  this  act  has  rendered  it  inapplicable 
to  several  ca.ses,  which  will  be  presently  mentioned  ;  and,  in  such  cases, 
the  estate  of  the  party  beneficially  interested  is  now  termed,  not  a  use, 
but  a  trust.  It  is  an  estate,  for  the  most  part,  recognized  only  by  courts 
of  e.quity,  and  not  by  courts  of  law.(l) 

4.  In  Massachusetts,  before  the  Supreme  Court  harf  the  Chancery 
jurisdiction  which  it  now  possesses  in  relation  to  trusts,  upon  principles 
of  public  policy,  it  was  Field  that  the  court  would,  if  possible,  construe 
a  liniitation  to  be  an  executed  use  rather  than  a  tiust.(2) 

5.  Trusts  are  either  exp7'ess  or  implied.  The  distinction  between 
these  two  kinds  of  trusts  will  be  explained  hereafter,  in  considering  the 
somewhat  extensive  subject  of  irnjjlied  and  resulting  trusts.  (See 
ch.  23.) 

6.  Trusts  are  further  divided  into  execufec?  and  hxeciitory.  The  former 
are  those  "accurately  created  and  defined  by  the  parties,"  and  are  con- 
strued like  legal  limitations.  They  are  not  subject  to  revocation. 
Executory  trusts  are  "  where  something  remains  to  be  done  to  com- 
plete the  intention  of  the  parties,  and  their  act  is  not  final :"  or  where 
the  trustee  has  some  duty  to  perform,  requiring  that  the  title  remain  in 
him. (3)     Executory  trusts  are  construed  liberally. (4)(a) 

7.  Lord  llardwickc  seems  to  have  rejected  the  distinction  above- 
nicutioiied,  of  executed  and  executory  trusts;  holding  that  an  executed 
trust  is,  in  fact,  a  use  executed  by  the  statute,  and  that  all  trusts,  from 
their  very  nature,  are  executory,  because  they  involve  an  obligation 
upon  the  trustee,  at  some  time  or  other,  to  convey  the  legal  estate  to 
the  cestui  or  for  his  benefit,  whether  the  party  creating  the  trust  ex- 
pressly so  ordered  or  not.     They  are  to  be  executed  by  suhpoena.{5) 

8.  There  are  three  direct  modes  of  creating  a  trust.  The  first  mode 
is  by  limiting  a  use^  or  trust  upon  a  use.  In  this  case,  the  latter  cestui 
cannot  take  an  executed  use,  because  the  statute  requires  that  the 
feoffee  be  seized  of  lands  or  tenements,  which  a  use  is  not.     Thus  a  con- 


(1)  2  Veiitr.  312;  Ayer  v.  Ayer,  16  Pick. 
330  ;  Fisher  v.  Fields,  10  John.  494 ;  Blough- 
ton  V.  Liuitrley,  2  LA.  Hay.  878;  Watkiiis  v. 
Holman,  16  Pet.  25;  Conway,  4  Ark.  302  ; 
Shoher  v.  Hauser,  4  Dev.  &  B  96  ;  Trotter  v. 
Blocker,  6  For.  269 ;  Kennedy  v.  Kennedy, 
2  Ala.  N.  572. 

(2)  Newhall  V.  Wheeler,  7  Mass.  198; 
Davis  u.  Hayden,  9,  519;  2  Blaekf!  193. 


(3)  2  Story,  on  Equ.  246-7,  and  n. ;  Jer- 
voisev.  Northumberland,  1  Jac.  &  Walk.  550; 
Rvcroft  V.  Chri.sty.  3  Beav.  238;  Berry  v. 
Wiliiam.son,  11  B.  Mon.  245  :  Porter  v.  Doby, 
2  Rich.  Equ.  49;  Scliley  v.  Lyon,  6  Geo.  530. 

(4)  1  Story.  74,  247,  250.  See  Bunn  v. 
Wiuthrop,  I  John.  Cha.  336. 

(5)  Bagshaw  v.  Spencer,  1  Coll.  Jurid. 
413. 


(a)  The  rule  in  Shelley's  ca.se  does  not  apply  to  them.  Porter  v.  Dob}',  2  Rich.  Equ.  119. 
Of  this  nature  arc  marriage  articles,  which  are  always  construed  liberally  in  favor  of  the 
issue,  for  whoso  benefit  they  are  chiefly  designed.  The  same  principle  docs  not  apply  to 
settlements  in  wills,  which  are  a  mere  bounty.  And  equity  will  not  enforce  mnrriasre  articles 
in  favor  of  volunteers,  or  other  parties  than  the  wife  and  issue  or  their  ropresentatives.  But 
if  enforced  for  the  latter,  they  will  also  bo  enforced  in  favor  of  the  former.  See  Neves  v. 
Scott,  13  How.  268. 

A  testator  devised  property  to  A  in  trust,  to  apply  the  proceeds  to  the  maintenance  of  B 
and  C  during  lile,  and,  on  tlieir  decease,  to  the  lieirs  of  B.  Held,  an  executory  trust,  and 
that,  on  the  death  of  B,  the  estate  vested  in  his  heirs  as  purchasers.  Porter  v.  Doby,  2 
Rich.  Kqu.  119. 

Where  a  trust  is  merely  voluntary,  and  the  transaction,  on  which  it  is  based,  is  still  exe- 
cutory ;  it  is  not  a  proper  subject  of  equity  jurisdiction.     Clarke  v.  Lott,  11  111.  105. 


302  TRUSTS.    EXPRESS  TRUSTS.  [CHAP.  XXII. 

veyance  or  devise  to  A,  to  the  use  of  B,  in  trust  for  or  to  tlie  use  of  C, 
gives  C  a  trust,  the  legal  estate  being  executed  in  B.(l)(a) 

9.  So,  where  there  is  an  appointment  to  uses,  under  a  power,  or  a 
covenant  to  stand  seized  with  one  person  to  the  use  of  another ;  the 
cestui  takes  only  a  trust  estate. 

10.  With  regard  to  devises,  it  has  been  held,  that,  where  there  is  no 
necessity  for  the  trustee's  taking  the  legal  estate,  and  the  intention  is 
clearly  otherwise,  the  above  rule  shall  not  be  adopted.  And,  in  one 
case,  this  principle  was  extended  even  to  a  deed. (2) 

11.  A  second  mode  of  creating  a  trust,  is  the  limitation  of  an  estate 
to  one  for  the  use  of  another,  in  such  a  way  as  requires  that  the  former 
should  be  in  possession  or  receipt  of  the  profits ;  as  w^here  it  is  pro- 
vided, that  he  shall  ialce  the  profits  and  dtliver  them  to  the  cestui^  or  that 
he  s,\\d\\  pay  over  the  profits  to  him,  or  permit  him  to  take  the  net  rents 
and  profits,  subject  to  a  rent-charge,  and  with  remainders  over.  A 
provision  that  the  cestui  should  take  the  profits,  or  even  that  the  feoffee 
should  permit  him  to  receive  them,  would  make  an  executed  use ;  be- 
cause, in  order  to  carry  it  into  effect,  the  trustee  need  not  be  in  posses- 
sion. But,  in  order  to  receive  rents  and  profits  for  another's  use,  the 
trustee  must  have  the  legal  estate.  If  this  is  in  the  cestui,  a  mere 
power  in  ti  ust  to  the  trustee  is  of  no  effect.  A  trust  for  the  support 
o^  infants  requires  that  the  trustee  be^je?7ior  of  the  profits.(3) 

12.  In  case  of  a  devise,  whether  the  trustee  or  the  cestui  shall  take 
the  legal  estate,  will  depend  upon  the  intention  of  the  testator,  as 
appearing  from  the  circumstances.  If  the  trustee  is  to  do  any  act 
requiring  a  legal  estate,  it  will  vest  in  him,  notwithstanding  he  is  to 
permit  the  cestui  to  receive  the  rents  and  profits.  Thus,  where  the 
trustee  is  to  pay  annuities,  or,  after  deducting  taxes,  repairs  and  expenses, 
to  pay  over  the  surplus,  or,  to  apply  the  rents  and  profits  to  the  main- 
tenance and  education  of  a  son  ;  the  trustee  takes  a  legal  estate. (4) 

12  a.  Devise  of  land,  to  be  sold,  and  the  proceeds  paid  to  certain 
devisees ;  held,  the  title  vested  in  the  heirs  at  law,  in  trust  for  the 
devisees.(5)(i) 

(1)  Marwood  v.  Darrill,  Cas.  Temp.  Hard,  i  W'ood  v.  "Wood,  5  Paige,  114;  2  Pick.  460; 
91;  Whetstone  v.  Bury,  2  P.  Wms.  146;  Franciscus  v.  Reigart,  4  "Watts,  109;  Ayer 
Att'y-Gen.  v.  Scott,  For.  138;  Hopkins  v.  v.  Ajer,  16  Pick.  330;  "Wroth  v.  Greenwood, 
Hopkins,  1  Atk.  581;  Venables  v.  Morris,  7  1  Home  &  H.  389;  TiJly  v.  Tilly,  2  Bland, 
T.  R.    342,    438;    Franciscus  v.    Reigart,  4,442.     See  Doe  i'.  Bolton,  11  Ad.  &  El.  188; 

Morton  v.  Barrett,  9  Shepl.  257;  Stuart  V. 
Kissam,  3  Barb.  493 ;  Upham  v.  Yaruey,  15 
N.  H.  462. 

(4;  Fearne's  Opin.  422  ;  Chapman  v.  Bli.s- 
sett,  For.  145 ;  Shaplaud  v.  Smith,  1  Bro.  R. 
75;     Silvester    v.   "Wilson,     2    T.    R.    444; 
McCosker  v.  Brady,  1  Barb.  Ch.  329. 
(5)  Burgin  v  Chenault,  9  B.  Men.  285. 


"Watts,  108;  Doe  v.  Passingham,  6  Barn.  & 
C.  305;  Vander  &c.  v.  Yates,  3  Barb.  Ch. 
242 

(2)  1  Cruise,  304,  cites  Boteler  v.  Alington, 
1  Bro.  Rep.  72  ;  Doe  v.  Hicks,  7  T.  R.  433 ; 
Curtis  V.  Price,  12  Yes.  89. 

(3)  Bro.  Abr.  Feoffment  al.  Use,  52; 
Broughton  v.  Langley,  2  Lord  Raym.  873 ; 


(a)  It  was  once  doubted  whether  this  doctrine  was  adopted  in  Massachusetts,  Thatcher 
V.  Omans,  3  Pick  528.  The  principle  is  roughly  handled  by  Lord  Mansfield  in  Goodright  v. 
Y'ells,  2  Dougl.  774. 

(b)  "Where  land  is  devised  to  trustees,  in  trust  to  sell,  and  apply  the  proceeds  to  certain 
specified  objects,  without  any  limitation  as  to  the  continuance  of  the  trust;  the  title  will 
continue  in  the  trustees  until  the  land  is  sold,  or  until  a  court  of  equity,  upon  the  applica- 
tion of  the  beneficiary  of  the  trust,  or  some  person  having  a  right  to  call  the  trustees  to  an 
account,  shall  remove  them.     Duke,  &c.  v.  Graves,  9  Barb.  595. 

In  an  action  of  ejectment,  brought  by  such  trustees,  the  defendant,  who  shows  no  title, 
cannot  object  that,  by  their  delay  in  executing  the  trust,  the  plaintiffs  are  divested  of  the 
title.    lb. 


CHAP.  XXII.]  TRUSTS.     EXPRESS  TRUSTS.  303 

13.  And  the  same  test  of  attention  lias  been  applied  to  a  convey 
ance. 

14.  A  conveys  land  to  B,  C  and  D,  selectmen  of  the  town  of  N., 
hahemluin  to  them  or  their  successors,  in  trust  for  the  use  of  N,  for- 
ever;  upon  the  condition,  however,  that,  if  A  shall  sugjwrt  himself 
and  indemnify  the  town  against  his  support,  the  deed,  is  also  a  bond 
conditioned  fur  such  support,  to  be  void.  Held,  as  the  bond  belonged 
to  B,  C  and  D,  not  to  the  town,  and  as  the  deed  was  merely  collateral 
to  the  bond,  such  construction  should  be  given  to  the  former,  as  would 
best  effect  its  oliject,  according  to  the  presumed  intention  of  the  grantor; 
and  therefore  B,  C  and  D  took  a  triisl,  not  an  executed  use,(l) 

15.  A,  holding  a  note  and  mortgage  against  B,  devises  them  to  C, 
B's  son,  on  condition  that  he  allow  B  to  occupy  the  land  for  life,  and 
upon  the  trust  of  supporting  certain  persons  named.  Held,  this  was  a 
trust,  not  an  executed  use,  and  that  B  had  no  legal  life  estate,  liable  to 
be  taken  by  his  creditors.(2) 

16.  Where  a  cestui  que  trust  is  a  married  woman ^  and  the  provision 
is  made  for  her  separate  benefit,  clearly  and  distinctly,  the  law  usually 
vests  the  legal  estate  in  the  trustee,  and  gives  her  only  an  equitable 
interest,  because  this  will  best  effect  the  object  in  view.  No  particular 
form  of  words  is  necessary  .(a)  The  husband  may  be  himself  a  trustee 
for  the  wife. 

(1)  Norton  v.  Leonard,  12   Pick.   152;   16  I      (2)  Merrill  v.  Brown,  12  Pick.  210. 
Pick.  330.  1 

"Wliere  a  will,  valid  on  iis  face,  conveys  real  estate  in  trust,  and  the  objects  are  clearly 
defiMed,  and  are  not,  at  the  time  the  will  takes  effect,  illegal,  the  trustees  acquire  a  perfect 
Iep::il  title;  and,  in  an  action  of  ejectment  brou<rht  by  tliem  agtiinst  a  stranger  and  intruder, 
without  color  or  claim  of  title  adverse  to  that  ofliie  plaintifls,  the  latter  cannot  be  required, 
in  the  tirst  instance,  to  make  any  further  proof  of  title,  than  to  prove  the  execution  of  the 
will.     They  are  not  bound  to  show  who  are  tiie  cestuis  que  trust.     lb. 

If  facts  have  transpired  since  the  death  of  the  testator,  or  any  other  circumstances  exist, 
by  wliich  the  trust  has  come  to  an  end,  it  is  incumbent  on  the  defendant  to  prove  them.  lb. 

Where  a  testator  devised  all  his  real  estate,  in  America  or  the  West  Indies,  to  trustees,  in 
trust  to  sell,  dispose  of,  or  otherwise  convert  the  same  into  money,  and  apply  the  proceeds, 
fir.«t  in  payment  of  his  debts,  and  the  residue  in  purchasing  real  estate  in  Scotland,  to  be 
conveyed  and  settled  for  the  uses  and  trusts  expressed  in  a  settlement  or  deed  of  disposi- 
tion wliich  lie  had  executed  of  his  estates  in  Scotland ;  held,  if  the  will  was  good  and  legal 
on  its  face,  to  pass  the  title  to  the  trustees,  it  was  sufficient  for  the  purpose  of  an  ejectment 
brought  liy  tiiem,  for  a  portion  ot  the  lands  devised ;  and  that  they  were  not  bound  to  pro- 
duce and  prove  the  deed  of  disposition  referred  to  in  the  will.    lb. 

(a)  Devise  to  A  and  his  heirs  forever,  in  trust  for  B,  a.  feme  covert,  for  life,  and  to  such 
uses  as  she,  notwithstanding  any  coverture,  shall  appoint;  and,  after  her  deatii,  to  the  use 
of  lier  heirs.  Held,  an  equitable  fee-simple  in  tlie  tirst  cestui  que  trust.  Armstrong  v.  Zane, 
12  Ohio,  287.     See  Blacklow  v.  Laws,  2  Hare,  49. 

A,  being  the  only  son  of  his  mother,  B,  by  her  first  husband,  and  B  being  his  heir,  de^ 
vised  lanrl  to  B,  "  to  hold  to  her,  her  heirs  and  assigns,  to  be  for  the  sole  use  of  her,  her 
heirs,  executors,  administrators  and  assigns."  The  mother  had  a  second  husband,  who  was 
intemperate  and  without  capacity,  and  she  lived  apart  from  him,  and  supported  herself  by 
labor.  Held,  she  tooli  the  property  to  her  own  separate  use,  and  it  was  not  liable  lor  the 
husband's  debts.     Smitii  v.  Wells,  7  Met.  240. 

W  conveyed  land  and  slaves  to  L,  in  tru.st  for  his  wife  E  during  her  life,  and,  after  her 
death,  to  her  children,  with  power  to  K,  by  and  witii  tlie  consent  of  the  trustee,  to  sell  and 
reinvest  tlie  proceeds  upon  the  same  trusts.  L  purchased  a  tract  of  land,  stock  and  grow- 
ing crops  from  A,  and  hired  his  slaves  to  assist  in  making  the  crop.  In  payment  she  gave 
her  notes,  secured  by  mortgages  on  her  trust  properly.  Held,  it  was  competent  for  her  to 
make  this  contract.     Wayne  v.  Mj'ddletoii,  2  Kelly,  383. 

A  testator  directed,  that  his  daughter's  share  of  his  estate  should  be  held  in  trust  for  her 
use,  during  the  joint  lives  of  herself  and  her  hushand,  and,  in  case  of  her  husband's  death, 
the  Iruat-niouey  to  be  paid  to  her;  aud,  in  case  of  ber  husband's  surviving  her,  her  share  to 


804 


TRUSTS.     EXPRESS  TRUSTS. 


[CHAP.  XXII. 


17.  Thus,  a  mother,  in  consideration  of  love  and  good  will  for  her 
daughter,  a  married  woman,  convej-s  land  to  one  "in  trust,  and  for  the 
sole  use  and  benefit"  of  the  daughter  during  her  life.  Held,  a  trust 
estate.(i) 

18.  Devise  in  trust,  for  the  equal  use  and  benefit  of  the  four  sisters 
of  the  testator,  two  of  whom  were  femes  covert,  in  fee,  to  be  managed 
as  the  trustees  should  think  most  for  the  interest  of  the  parties.  Held, 
a  trust.(2) 

19.  ■  Devise  to  trustees  and  their  heirs,  in  trust  for  a  married  woman 
and  her  heirs ;  and  that  the  trustees  should,  from  time  to  time,  pay 
and  dispose  of  the  rents  to  the  said  married  woman,  wit.hout  the 
intermeddling  of  her  husband.  Held,  a  trust,  and  not  an  executed 
use.(3) 

20.  Devise  of  rents  to  a  married  woman  for  life,  to  be  paid  by  the 
executors  into  her  own  hands,  without  the  intermeddling  of  her  hus- 
band. Lord  Holt  held,  that  the  trustees  took  the  legal  estate.  The 
other  judges  thought  othervvise.(4) 

21.  Devise  to  trustees  and  their  heirs,  in  trust  to  pay  several  lega- 
cies and  annuities,  and  then  to  pay  the  surplus  rents  into  the  proper 
hands  of  a  married  woman,  and,  after  her  death,  that  the  trustees 
should  stand  seized  to  the  use  of  the  heirs  of  her  body.  Held,  during 
her  life,  the  trustees  took  a  legal  estate;  but,  after  her  death,  a  use 
was  executed  in  her  heirs.(5) 

22.  In  such  cases,  it  has  been  said,  the  trustees  take  the  legal  estate 
by  way  of  an  executed  use.(6) 

23.  A  testator  devised  to  his  grand-children,  the  children  of  A,  his 
daughter,  all  his  estate,  to  be  equall}^  divided  between  them  at  her 
death.  He  also  devised  the  use  of  the  estate  for  the  support  of  A 
and  her  children,  during  her  life  ;  and,  to  carry  into  effect  this  pro- 


(1)  Ayer  v  Ayer,  16  Pick.  327.  See  1 
Home  and  H.  389 ;  Stuart  v.  Kissara,  3 
Barb.  493;  Mass.  St.  1852,  67;  Porter  v. 
Bank,  &c.,  19  Yerm.  410.  See  Stanton  v. 
Hall,  2  Russ.  &  My.  175;  Tyler  v.  Like,  4 
Sim.  144;  Rogers  v.  Ludlow,  3  Sandf.  Cli. 
104 ;  Dickerson,  7  Barr,  255. 


(2)  Bass  V.  Seott,  2  Leigh,  356. 

(3)  Nevill  V.  Saunders,  1  Ver.  415. 

(4)  South  V.  Allen,  5   Mod.  101;  Bush  v. 
Allen,  lb.  63  ;  South  v.  AUeine,  1  Salk.  228. 

(5)  Say  V.  Jones,  1    Abr.  Eq.  383  ;   Say  v. 
Jones,  3  Bro.  Pari   Cas.  113. 

(6)  Harton  v.  Harton,  7  T.  R.  652. 


be  paid  to  her  children.  Held,  the  husband  interposing  no  claim,  that,  as  against  other 
legatees,  her  children  were  entitled  at  her  death  to  interest  accrued,  but  not  reduced  to 
possession,  during  her  lite.     Yuadt's  Appeal,  1  Harris,  575. 

In  New  York,  a  trust,  authorizing  the  trustee  to  control,  manage,  sell  and  dispose  of  the 
trust  estate,  and  the  income,  an(4  pay  over  the  same  to  a  married  woman  for  her  support  and 
maintenance;  is  substantially  a  trust  to  receive  the  rents  and  profits,  and  apply  the  same 
to  her  use,  within  the  statute  of  trusts,  and  is  therefore  valid.  Campbell  v.  Low,  9  Barb. 
585. 

Where  husband  and  wife  convey  land  belonging  to  her  to  a  trustee,  in  trust  to  sell  the 
same  for  the  use  of  the  grantors;  the  land  being  unsold,  the  trustee  is  not  entitled  to  hold 
it,  as  against  a  subsequent  bona  fide  mortgagee  without  notice,  in  satisfaction  of  debts  due  to 
him  from  the  husband,  before  tlie  mortgage  was  executed.  Siter  v.  McClanauhan,  2  Gratt. 
280. 

And  parol  evidence,  in  such  case,  is  not  admissible,  to  show  that  such  was  the  agreement 
at  the  time  of  making  the  deed  of  trust.     lb. 

So,  the  trustee,  being  also  a  prior  mortgagee  of  the  same  land,  cannot  tack  debts  due  him 
from  the  husband  to  his  prior  mortgage,  to  the  prejudice  of  the  subsequent  mortgagee.     lb. 

Contrary,  it  would  seem,  to  the  general  rule,  it  has  been  held  in  South  Carolina,  that  a 
devise  to  a  wife,  "to  be  by  her  freely  enjoyed  to  every  intent  and  purpose,  as  her  own  in 
every  respect,"  did  not  create  a  separate  estate  in  her.  Wilson  v.  Bailer,  3  Strobh.  Eq.  258. 


CHAP.  XXII.]  TRUSTS.     EXPRESS  TRUSTS.  305 

vision,  he  appointed  A  and  B  trustees  of  the  estate.     Held,  a  trust 
estate.  (1) 

24.  A  conveyance  or  devise  to  trustees  and  their  heirs,  in  trust  to 
sell  or  mortgage,  to  raise  money  for  payment  of  debts,  passes  the  whole 
legal  estate  to  the  trustees ;  so  that  a  subsequent  limitation  in  trust 
gives  only  an  equitable  interest  to  the  cestui. 

25.  Devise  to  trustees,  their  heirs  and  assigns  in  trust,'that  they  and 
their  heirs  should  first,  by  the  rents  and  profits,  or  by  sale  or  mort- 
gage, i-aise  money  for  payment  of  debts;  after  which,  to  the  trustees, 
lor  five  hundred  years,  without  impeachment  of  waste,  upon  divers 
trusts.  After  the  termination  of  this  term,  devise  to  the  trustees,  their 
heirs  and  assigns  ;  they  to  stand  seized  in  trust  to  uses  as  follows:  for  one 
moiety  "  I  give  and  devise  to  the  use  and  behoof  of  A  for  life,"  &c. 
Held,  A  took  only  an  equitable,  not  a  legal  interest;  because  the 
whole  legal  estate  passed  to  the  trustees,  and  would  have  passed  even 
without  mention  of  their  heirs,  as  necessary  to  the  execution  of  the 
trust ;  and  no  legal  remainder  could  therefore  be  limited  upon  it  (2) 

26.  Conveyance  to  the  use  of  trustees  and  their  heirs,  in  trust  to 
sell,  and  with  the  proceeds  purchase  other  lands,  to  be  settled  upon  by 
the  grantors ;  with  a  proviso  that,  until  a  sale  were  made,  the  rents 
should  be  received  as  before.  Held,  the  use  of  the  estate  was  executed 
in  the  trustees,  and  that  the  proviso  did  not  reserve  any  lecral  interest 
or  title  to  the  grantors.(3) 

21.  But  where  the  legal  estate  is  vested  in  a  trustee  for  the  accom- 
plishment of  particular  purposes,  it  will  cease  when  those  ]:)urposes 
have  been  effected,  and  a  use  will  be  executed  in  the  party  who  is  next 
beneficially  interested.  This  has  been  already  seen  in  some  of  the  ca- 
ses relating  to  married  women. (a) 

28.  Devise  to  trustees,  in  trust  from  the  rents,  &c.,  to  pay  two  life 
annuities;  after  payment  thereof,  in  trust,  from  the  residue  of  the  rents 
to  pay  to  A  a  certain  sum  intrust.  After  payment  of  the  annuities 
and  said  sum,  devise  to  B  for  life.  The  trustees  were  empowered  to 
grant  building  and  other  leases.  Held,  the  trustees  took  the  legal  es-  ' 
tate  for  the  lives  of  the  annuitants,  with  a  term  in  remainder  sufiicient 
to  raise  the  sum  mentioned,  subject  to  which  B  took  a  legal  estate  for 
life.(4) 

28  a.  A  husband  conveyed  to  A,  "her  executors,  administrators 
and  assigns,"  all  the  estate  which  he  had  in  the  land  of  his  wife,  in  vir- 
tue of  his  relation  as  husband,  in  trust  for  the  wife,  "givino'  her  full 
power  through  her  trustee  to  disi)ose  of  said  property,  collect°rents  or 
do  any  other  matter  or  thing,  relating  to  said  property,  without  let  or 
hindrance  of  the  husband.  HA^,  the  trustee  took  an  estate  for 
the  life  of  the  wife  only ;  and  that,  on  the  death  of  the  wife,  living  the 

(1)  Donalds  v.  Plum,  8  Conn.  447  ,      (4)  Doe  v.  Simpson,  5  E.  162.     See  Doe  v. 

(2)  Bas.sha,v  V    bpeucer,    1    Co       Jurid.    Ellis.  4  Ad.  &  El.  582  ;  v.  xVeeds,  2  Mees. 

o(8;   Wri(>:ht  v.  Pearson,  Fearne,  126.  &  W.   129. 

{;-))  Koen  V.  Deardon,  8  E.  248.  1 


(a)  So  It  IS  held,  tl.at  where  one  is  appomted  trustee,  by  a  marriage  contract,  for  the  sole 
purpose  ot  protecting  the  wife  s  properly  from  the  control  of  her  husband  the  tru^t  is  exe- 
cutea  immediately  on  the  termination  of  the  coverture,  whether  by  her  death  or  otherwise 
and  the  properly  vests  in  her  respreseutatives.     Liptrot  v.  Holmes  1  Kelly  381  ' 

Vol.  I.  20  .         ^.      • 


306  TRUSTS.     EXPRESS  TRUSTS.  [CHAP.  XXII. 

husband,  the  trust,  not  having  been  executed,  ceased,  and  he  was  enti- 
tled to  his  estate  by  the  curtesy  in  the  premises.(l) 

29.  A  conveyance  was  made  in  New  York,  before  the  Ee vised  Sta- 
tutes were  passed,  to  A  in  lee,  in  trust  for  her  daughter  B,  in  fee,  pro- 
vided B  did  not  die  under  age,  and  without  issue;  if  she  did,  then  for 
the  sole  use  of  A  in  fee,  A  dies  in  the  minority  of  B,  leaving  B  her 
sole  heir.  Held,  the  trust  ceased  with  A's  death,  and  the  absolute  es- 
tate vested  in  B.(2) 

30.  Devise  of  a  certain  sum,  to  be  for  the  separate  use  of  A,  the 
daughter  of  the  testator  and  the  wife  of  B,  for  her  life,  free  from  the 
debts  of  B.  B  died,  and  A  married  a  second  husband.  The  trust  for 
the  separate  use  of  A  ceased  with  the  death  of  B.(o) 

31.  Conveyance  in  trust,  for  the  separate  use  of  A  for  life,  remainder 
upon  her  death,  to  such  child  or  children  of  A  as  may  be  then  living,  or 
who  shall  marry  or  attain  twenty-one  years.  .  Held,  this  created  an  ex- 
ecuted trust,  and  a  vested  legal  estate,  in  A's  children  on  her  death. (4) 

31  a.  Where  the  estate  was  not  merely  given  in  trust  to  the  hus- 
band, for  the  use  and  benefit  of  the  wife,  but  for  her  separate  use,  there- 
by creating  a  separate  estate  in  her  ;  held,  when  the  powers  of  the  trus- 
tee ceased  by  the  limitation  contained  in  the  trust  itself,  he  could  no 
longer  hold  the  trust  estate  in  his  hands;  and,  if  he  died  without  trans- 
ferringit  to  the  cestui  que  trusty  or  disposing  of  it  for  her  benefit  or  use, 
the  court  should  decree  for  her  immediate  possession. (5) 

31  h.  Where  a  trustee,  under  a  deed  of  trust  for  the  separate  use  of 
a  married  woman,  agreed  by  articles  to  convey  the  trust  to  A,  in  con- 
sideration of  certain  sums  to  be  paid  for  the  maintenance  of  his  cestui 
que  trusty  and  he  subsequently  conveyed  the  property  to  A,  and  took 
a  mortgage  to  secure  a  bond  given  for  the  purchase-money  ;  held,  the 
articles  were  merged  in  the  conveyance  and  mortgage ;  and  the  trustee 
was  entitled  to  recover  the  unpaid  balance  after  the  death  of  his  cestui 
que  trust.i})) 

31  c.  A,  having  a  long  term  in  certain  premises,  conveyed  them  to  a 
trustee  to  receive  the  rents  and  profits,  and  apply  them  to  the  support 
of  B,  during  her  natural  life,  and,  after  her  death,  to  C,  her  heirs  and 
assigns.  Held,  the  trust  ceased  at  the  death  of  B,  the  residue  of 
the  term  then  vested  in  possession  in  C,  and  the  trustee  could  not  after- 
wards maintain  ejectment  against  a  stranger  therefor.(7) 

32.  U[)on  a  similar  principle,  a  trust  estate,  created  for  the  benefit  of 
the  cestui^  may  be  terminated  or  converted  into  a  legal  estate,  in  c>>n- 
sequence  of  some  act  done  by  such  cestui^  which  vests  his  interest  in 
third  persons. 

33.  A  testator  devised  property  to  trustees,  to  be  applied  to  the  sup- 
port, &c.,  of  A  for  life,  as  they  should  think  proper ;  the  application 
for  hi.s  benefit  to  be  at  their  entire  direction  ;  and  A  to  have  no  power 
in  any  way  to  sell,  mortgage,  or  anticipate  the  rents.  A,  being  insol- 
vent, made  an  assignment  under  the  insolvent  act  to  B.  The  Court  of 
Chancery  decreed  a  conveyance  of  the  land  to  B.(8) 

(1)  Norton  v,  Norton,  2  Sandf.  296.  I      (5)  Waring  v.  Waring.  10  B  Men.  331. 

(2)  Dekay,  4  Paijje,  40.'5.  (6)  Dinsmore  v.  Biggcrt,  9  Barr,  133. 

(3)  Benson  v.  Benson,  6  Sim.  126.  (7)  Nicoll  v.  Walworth,  4  Denio,  385. 

(4)  Spann  v.  Jennings,  1  Hill's  Cha.  324.  I      (8)  Green  v.  Spicer,  Tam.  396. 


CHAP.  XXI L] 


TRUSTS.     FA' PR  ESS  TRUSTS. 


307 


34.  Where  lands  are  devised  in  trust,  merely  subjecting  them  to  pay- 
ment of  debts  will  not  vest  a  legnl  estate  in  the  trustee. 

35.  Devise  of  real  and  personal  estates  to  trustees  and  their  heirs, 
to  the  intent  that  they  should  first  apply  the  personal  estate  in  pay- 
ment of  debts;  and  as  to  the  real  estates,  subject  to  debts,  devise  to  A 
for  life,  &c.  Held,  as  there  was  nothing  to  show  that  the4rustees  were 
to  be  active  in  the  payment  of  debts,  although  convenience  would  so 
suggest,  they  did  not  take  the  legal  estate.(l) 

36.  The  third  case,  in  which  the  trustees  take  the  legal  and  the  ces- 
tui on]y  an  equitable  interest,  is  where  the  estate  limited  to  the  former 
is  less  than  a  freehold,  and  therefore  not  executed  in  the  cestui  by  the 
statute  of  uses  ;  which  makes  use  of  the  word  seized,  a  word  applicable 
only  to  freehold  estates.(2) 

37.  The  English  statute  of  frauds,  (3  Cha.  II.,  c.  3,  sec.  7,)  requires 
all  creations  or  declarations  of  trusts  in  real  estate  to  be  manifested  and 
proved  by  some  writing  signed  by  the  party,  or  by  his  last  will.  Parol 
trusts  are  contrar}'-  to  the  letter  and  spirit  of  the  statute  of  frauds,  and 
are  calculated  to  let  in  all  the  litigation,  uncertaint}'-  and  mischief 
which  that  act  intended  to  prevent.(o)(«) 

38.  It  is  said,  that  this  statute  did  not  extend  to  the  Provinces,  and 
was  never  adopted  in  the  State  of  Massachusetts. (4)  But  a  similar  pro- 
vision has  been  made,  it  is  believed,  in  nearly  every  State  in  the 
Union.(i) 

39.  In  Ohio,  before  the  statute  of  frauds,  passed  in  1810,  a  parol 
trust  was  good. 

40.  In  North  Carolina,  parol  declarations  of  trust  are  valid.(o)  So 
also  in  some  cases  in  Penns3-lvania.(c)  (See  sec.  58.)  But  the  declara- 
tion must  be  made  by  the  grantor  of  the  estate.  If  made  bv  the  nomi- 
nal grantee,  it  will  be  invalid,  unless  founded  an  the  consideration  that 


(1)  Kenrick  v.  Beauclerc,  3  B.  &  P.  175; 
(Jenifer  v.  Beard,  4  Har.  &  McHenry,  73.) 

(2)  Bac.  Read.  42  ;  Dyer,  369  a. 

(3)  Per  Sergeant,  J.,  Graliam  v.  Donaldson, 
5  Watts,  452.  See  Smitheal  v.  Gray,  1 
Humpb.  491 ;    Robson  v.  Harwell,   6  Geo. 


589;  Parker  t'.  Bragg,  11  Humph.  212;  Mil- 
ler V.  Gotten,  5  Geo.  341. 

(4)  Russel  V.  Lewis,  2  Pick.  503. 

(5)  Fleming  i'.  Donahoo,  5  Ham.  25G;  For 
V.  Foy,  2  Ilayw.  131. 


(a)  A  declaration  of  trust  need  not  bo  sealed  sls  well  as  signed.  But  it  is  lield,  that  if  such 
declaration  is  unsealed,  a  consideration  must  be  proved.  Thompson  v.  Branch  1  Meijrs 
390.  ' 

(b)  The  re-enactment,  in  1813,  of  the  New  York  act  of  1801,  for  tlio  incorporation  of 
religious  societies,  without  re-enacting  the  statute  of  frauds,  may  bo  regarded  as  a  modifica- 
tion or  amendment  of  the  statute  of  frauds,  so  tar  as  to  make  a  use  or  trust,  in  favor  of  a 
religious  society,  an  exception  to  the  provision  of  the  statute  of  frauds,  which  required  that 
declarations  of  trust  sliouid  be  in  writing.     Voorhees  i'.  The  Presbyterian,  &c.,  8  Barb.  135. 

Proof  by  parol,  that  tiie  vendor  of  land  and  the  agent  of  the  vendee,  by  whom  the  pur- 
cha.=<e  was  made,  understood,  at  the  time  of  the  purchase,  that  it  was  made  upon  a  certain 
trust,  does  not  show  that  the  vendee  him.self  so  intended  and  understood  the  tr.insaction 
and  is  insufficient  to  establish  a  parol  trust     Harris  v.  Barnett,  3  Gratt.  339. 

By  the  statute  of  frauds  of  Illinois,  all  trusts,  except  resulting  trusts,  to  be  valid,  must  bo 
created  or  evidenced  in  writing.     Ilovey  v.  Holcomb,  11  III  6G0. 

(c)  A  trust  in  real  estate,  coeval  with  a  deed  for  the  same,  may  be  proved  by  parol. 
Wetherell  V.  Hamilton,  3  Harris,  195. 

A  devise,  made  on  the  parol  promise  of  the  devisee,  to  hold  the  estate  devised  in  trust 
for  herself  and  another,  creates  a  valid  trust.     McKee  v.  Jones,  6  Barr,  425. 

"Wliere  a  mother,  at  the  request  of  her  .son,  devised  her  land  to  her  daughter,  to  hold  ia 
trust  for  herself  and  the  son  ;  held,  this  created  a  valid  trust,  although  made  for  the  purpose 
of  avoiding  the  creditors  of  the  sou.     lb. 


308 


TRUSTS.     EXPRESS  TRUSTS. 


[CHAP.  XXII 


the  purchase-money  was  paid  by  the  cestui ;  and  in  that  case  it  is  su- 
perfluous, because  a  trust  results  by  imphcation.(l) 

41.  A  trust,  in  order  to  be  valid,  need  not  be  created  by  writing,  nor 
at  the  time  the  land  is  purchased  ;  it  is  sufficient  that  there  is  any  writ- 
ten evidence  of  its  existence,  showing  its  creation  or  acknowledgment 
even  after  the  purchase ;  as,  for  instance,  a  letter  signed  by  the  trustee, 
and  acknowledging  the  trust.  But  such  acknowledgment  must  show 
not  only  the  existence,  but  the  precise  nature  and  terms  of  the  trust. 
And  'the  trustee's  own  admission  is  said  to  be  very  weak  evidence 
of  the  trust.(2) 

42.  If  the  writing  be  lost,  its  contents  may  be  proved  by  parol  evi- 
dence, as  in  other  cases.(3) 

43.  A  pamphlet,  published  by  the  trustee,  was  held  a  sufficient  de- 
claration of  the  trust.('i) 

44.  A  written  acknowledgment  of  a  trust,  created  by  parol,  will 
bind  a  purchaser  from  the  trustee.(5) 

45.  A  gives  a  bond  to  B  to  secure  an  estate  for  him,  and  B  enters. 
This  is  a  sufficient  creation  or  declaration  of  trust.(H) 

46.  A  conveys  land  to  B,  and  B  gives  back  an  unsealed  writing, 
stating  that  B  had^^aicZ  A  a  certain  sum  and  taken  a  deed  of  the  land, 
and  had  agreed  to  let  A  "have  the  improvement  or  sell,  provided  he 
should  pay  said  sura  in  three  years,  and  interest."  The  land  was  worth 
more  than  the  sum  named.  Held,  the  word  paid  should  be  construed 
to  mean  lent  or  advanced ;  that  the  effect  of  the  as;reement  in  regard  to 
a  sale  was,  to  authorize  A  to  negotiate  for  such  sale,  and  an  engagement 
by  B,  he  having  the  legal  estate,  to  carry  it  into  effect ;  and  that  B  held 
in  trust  for  A. (7) 

47.  A,  by  a  covenant,  authorizes  B  to  convey  his  (A's)  land,  and 
retain  one-third  of  the  money  or  property  received  for  it  as  a  compen- 
sation for  his  services.  B  covenants  to  pay  and  deliver  to  A  the  other 
two-thirds.     Held,  a  good  declaration  of  trust.(8) 

48.  An  act  of  the  legislature  may  operate  as  the  creation  or  declaration 
of  a  trust.  Thus,  the  State  of  North  Carolina  having  made  provision 
in  public  lands  for  the  revolutionary  officers  and  soldiers;  held,  an 
equitable  fee-simple  in  the  lands  thereby  vested  in  the  latter,  and  the 
State  became  a  trustee,  with  the  usual  liabilities  incident  to  that 
office.  (9) 

49.  An  admission  of  a  trust  by  an  answer  in  Chancery  is  sufficient 
to  bind  a  trustee. (a) 


(1)  Kisler  v.  Kialer,  2  Watts,  324. 

(2)  Forster  v.  Hale,  .S  Ves.  jan.  696; 
Eislier  v.  Fields,  10  Jolin.  495;  Arms  v. 
Aslilev,  4  Pick.  71;  Conwell  v.  Evill,  4 
Blacki:  67;  United,  kc.v.  Woodburj^,  2  Shepl. 
281:  Duke,  &e.  v.  Graves.  9  Barb.  595; 
Brown  v.  Brown,  1  Strobh.  Equ.  363. 

(3)  Orleans  v.  Chatham,  2  Pick.  29. 


(4)  Barrel!  v.  Joy,  16  Mass.  223. 

(5)  Rutledge  v.   Smith,    1    M'Cord's    Cha. 
119. 

(6)  Orleans  v.  Cliatham,  2  Pick.  29. 

(7)  Seituate  v.  Hanover,  16  Pick.  222. 

(8)  Armstrono:  v.  Campbell,  3  Yerg.  201. 

(9)  Piuson  V.  Ivey,  1  Yerg.  296. 


(a  To  affect  one  with  knowledge  of  a  secret  trust,  who  was  purchasing  land  from  the 
apparent  owner,  in  whom  the  legal  title  was  vested,  it  must  be  shown  that  he  was  fully 
aware  of  the  precise  terms  of  the  trust  before  he  completed  his  purchase.  Indeflnite  and 
uncertain  admissions  will  not  authorize  the  positive  denials  of  the  answer.  Conner  v.  Tuck, 
11  Ala.  794. 


CHAP.  XXII.] 


TRUSTS.     EXPRESS  TRUSTS. 


309 


50.  A,  in  consideration  of  £80,  made  an  absolute  conveyance  to  B. 
A  brings  a  bill  in  equity  to  redeem.  B,  in  his  answer,  insisted  that 
the  deed  was  absolute,  but  confessed  that,  after  payment  of  the  £80  and 
interest,  he  was  to  hold  in  trust  for  A's  wife  and  children.  Held,  this 
was  a  legal  declaration  of  trust.(l) 

51.  Where  an  execution  was  levied  on  rents  and  profits  for  a  term, 
and  the  creditor  afterwards  executed  a  written  unsealed  instrument, 
reciting  that  the  note  on  which  the  judgment  was  founded  belonged  to 
another  in  part,  and  promising  to  pay  him  the  rents  and  profits,  or 
allow  him  the  use  and  improvement  of  the  estate  after  satisfying  his 
own  debt;  held,  a  sufficient  declaration  of  trust.(2) 

5"2.  Such  declarations,  however,  must  be  under  the  party's  hand, 
and  clear  and  explicit.  Thus,  letters  addressed  by  a  son  to  Ids  father 
and  brothers,  equivocal  in  their  language,  were  held  insufficient  to 
prove,  that  the  former  held  an  estate  wliich  he  bought  at  a  sale  on  exe- 
cution against  the  father,  in  trust  for  the  latter.  So  with  loose  accounts, 
in  which  the  father  was  charged  and  credited  in  connection  with  such 
purchase.(3) 

53.  Parol  evidence  is  admissible,  to  control  or  explain  such  ambigu- 
ous declarations.(4) 

54.  It  has  been  held  in  the  United  States  Court,  that  if  a  grantee,  in 
an  account  subsequently  stated,  credit  the  grantor  with  the  proceeds  of 
sale  of  a  part  of  the  land,  this  raises  a  trust.(5) 

55.  A  trust  cannot  be  established  by  parol  evidence,  even  though 
this  goes  to  confirm  other  written  evidence,  in  showing  the  title  to  the 
land  not  to  be  in  the  supposed  trustee,  or  to  rebut  parol  evidence,  which 
shows  a  fraudulent  conveyance  by  suCh  trustee. 

56.  A,  the  husband  of  B,  conveys  to  C,  her  father,  all  his  interest  in 
her  land,  for  a  nominal,  but  no  actual  consideration.  C,  being  insolvent, 
afterward  re-conveys  to  B,  taking  her  note  fov  a  small  sum,  with  the 
mutual  intent  to  protect  the  land  from  creditors.  The  land  is  after- 
wards taken  by  C's  creditors.  A,  upon  conveying  to  C,  gave  him  a 
bond  against  exercising  any  control  over  B's  estate.  B  always  occu- 
pied the  land.  Held,  no  trust  was  legally  proved  which  would  con- 
stitute a  valuable  consideration  for  the  deed  of  C  to  B,  and  that  C's 
creditors  should  hold  the  land. (6) 

57.  It  has  been  held  in  Massachusetts,  that  the  statute,  establishing 
Chancery  jurisdiction  of  trusts,  had  no  effect  upon  the  prior  statute 
which  excludes  parol  evidence  of  them. (7) 

58.  It  is  held,  that  where  a  transaction  may  be  viewed  as  "  ex  male- 
ficio"  as  where  one  purchases  at  sheriff's  sale  in  trust  for  another,  and 
refuses  to  fulfil  the  trust ;  the  statute  of  frauds  does  not  apply.(«)    But 


(1)  Hampton  v.  Spencer,  2  Vern.  288. 

(2)  Arms  v.  Ashley,  4  Pick.  71. 

(3)  Steere  v.  Steere,  5  John.  Chan.  1. 

(4)  lb. 


(5)  Prevost  v.  Gratz,  I  Pet.  Cir.  3GG. 
(G)  Smith  V.  Lane,  3  Pick.  205. 
(7)  Black  V.  Black,  4  Pick.  234. 


(a)  So  where  lands  were  bid  on  at  a  sale  under  exooution  by  one  who  professed  to  act  as  the 
frien'l  of  the  debtor,  and  tliia  was  understood  by  tiiose  present  at  tlie  sale,  who  were  tiiere- 
by  prevented  from  bidding  ;  and  the  purchaser  agreed  in  an  insfrmnent  under  seal,  sent  to 
the  debtor,  to  pay  off  ihe  execution  debts,  and  the  other  liens,  and  to  pay  d -bts  due  to  him- 
self, and  then  to  convey  the  remainder  of  the  lands  to  the  del)tor.  or  his  heirs;  and  the 
debtor  released  his  title  to  the  purchaser,  who  not  only  paid  all  the  existing  debts,  but  judg- 


310 


TRUSTS.     IMPLIED  AND 


rCHAP.  XXIIL 


where  an  execution  plaintiff  purchased  the  land  sold,  agreeing  with 
the  defendant  to  reconvey  on  payment  of  his  judgment,  and  took  pos- 
session, greatly  improved  the  land,  and  occupied  for  ten  years ;  held, 
he  was  not  bound  to  fulfil  the  agreement,(l) 

59.  In  cases  of  fraud,  accident  or  mistake,  it  seems,  Chancer}^  will 
interfere  to  enforce  a  parol  trust.  But,  where  A  conveyed  to  B  by  an 
absolute  quit-claim  deed,  expressing  a  valuable  consideration,  it  was 
held  in  Chancery,  that  A  could  not  prove  by  parol  evidence,  either 
upon  the  principles  of  the  common  law  or  the  statute  of  frauds,  an 
agreement  by  which  B  was  to  bold  in  trust  for  him,  and  subsequently 
execute  a  writing  to  that  effect ;  and  that  B  acknowledged  the  agree- 
ment, and  was  solicitous  to  have  it  fulfilled,  but  by  negligence,  accident, 
or  some  unaccountable  cause  of  delay,  the  execution  was  delayed  till  B's 
death.  And,  as  the  evidence  went  to  show  an  express  trust,  it  would 
not  sustain  the  claim  of  an  equitable  lien  for  advances  of  money. (2) 

60.  If  a  trustee  executes  a  trust  created  by  parol,  he  will  be  bound 

by  it.(y) 


CHAPTER  XXIII. 


TRUSTS.      IMPLIED    AND    RESULTING    TRUSTS. 


1.  Implied  trusts — not  within  the  statute 

of  !i-auds. 

2.  How  proved. 

6.  General  classification  of. 

8.  Distinction  between  an  express  and  im- 

plied trust. 

9.  Cannot  contradict  a  deed. 
10.   Contract  to  convey  land, 

12.  Purcliase  by  one  person  with  the  money 

of  another;  parol  evidence,  &c. 
28.  Cases  not  within  the  rule. 

34.  Aliens. 

35.  Rules  in  different  States. 
40.  Purchase  with  trust  money. 


43.  Election  of  cestui. 

44.  Conveyance  without  consideration. 
49.  Declaration  of  trusts  in  part. 

53.  Consideration  to   be  determined   after- 

wards. 

54.  Trusts  illegal,  &c. 

55.  Trusts  failing  or  exhausted. 

56.  Trusts  to  be  afterwards  appointed. 

51.  Renewal  of   leases,   &c.,   in    trustee's 
name. 

64.  Conveyance  obtained  by  fraud. 

65.  Conveyance  to  a  father  in  the  name  of  a 

child. 
82.  Conveyance  to  husband  and  wife,  &c. 


1,  Implied  trusts  are  those  which  arise  or  are  created,  not  by  ex- 
press act  or  declaration  of  parties,  but  hy  construction  or  implication  of 
law.  These  are  not  affected  by  the  English  statute  of  frauds,  or  by 
the  American  statutes  on  the  same  subject,  being  in  general  specially 

(1)  Graham  v.  Donaldson,  5  Watts,  451-2.  |      (3)  Elliott  v.  Morris,  Harp.  Equity,  281. 
(2^  Deanv.  Dean,  6  Conn.  285.  | 


ments  obtained  after  tlie  purchase  agaiti-st  the  debtor,  and  then  conveyed  some  of  the  lots 
to  the  heirs  of  the  debtor;  and  the  whole  were  finally  divided  between  the  heirs  and 
debtor;  held,  the  lands  were  purchased  and  held  in  trust  by  tlie  purchaser,  and  were  sub- 
ject to  the  debts  of  the  debtor;  and  tliat  the  burden  of  debts,  wliich  before  the  division  of 
the  lands  would  have  been  a  common  one,  ought  to  be  borne  proportionably.  Lytle  v.  Pope, 
11  B.  Mon.  297. 


CHAP.  XXIII.] 


RESULTING  TRUSTS. 


811 


excepted  from  their  operation,  or,  if  not,  liclil  to  be  excepted  by  7ieces- 
sary  intendment  ;(a)  and  may  be  created,  since,  as  before  that  statute, 
without  any  instrument  in  writing.  They  are  usually  called  resuUiiKj 
trusts.(l) 

2.  It  is  said,  an  implied  trust  is  more  difficult  of  proof,  but,  when 
proven,  has  the  same  effect  as  an  express  one.(2) 

3.  It  was  said  by  Lord  Nottingham,  "the  law  never" implies,  the 
couit  never  presumes,  a  trust,  but  in  case  of  absolute  necessity.  Other- 
wise the  Lord  Chancellor  might  construe  or  presume  any  man  in  Eng- 
land out  of  his  estate."(3) 

4.  A  distinguished  commentator  remarks,  that  this  is  too  strong  lan- 
guage, and  suggests  the  following  substitute  : 

5.  "  A  trust  is  never  presumed  or  implied  as  intended  by  the  parties, 
unless,  taking  all  the  circumstances  together,  this  is  the  fliir  and  reasona- 
ble interpretation  of  their  acts  and  transactions."(-J-) 

6.  Implied  trusts  are :  L  Those  Avhich  stand  upon  the  presumed  inten- 
tion of  the  parties ;  2.  Those  independent  of  such  intention,  and 
forced  upon  the  conscience  of  the  party  by  operation  of  law,  as  in  case 
of  fraud  or  notice.(5) 

7.  It  is  remarked  by  the  court  in  Pennsylvania,  tliat  in  England 
there  are  two  kinds  of  resulting  trusts :  1.  Where  a  deed  is  made  to 
A,  but  the  purchase-mone}^  is  B's,  the  purchaser's ;  in  which  case,  a 
trust  results  to  B.(/>)  2.  Where  trusts  are  expressly  declared  for  a  part 
of  the  estate;  and  then  a  trust  results  for  the  residue.  There  are  other 
cases,  where  a  specific  lien  is  allowed,  upon  land  purchased  in  part  with 
money  withdrawn  from  a  trust  fund.  But  these  are  not,  technically, 
resulting  trusts.(6) 

S.  The  distinction  between  express  and  implied  trusts  has  been  thus 
stated.  A  trust,  which  results  to  a  purchaser  b}'-  operation  of  law, 
must  be  a  pure  unmixed  trust  of  the  ownership  and  title  of  the  land 
or  estate  itself  Where  there  is  a  mere  interest  in  the  proceeds,  or  a 
lien  upon  the  laud  as  security,  or  a  claim  upon  the  money  to  be  raised 
by  a  sale  or  mortgage  of  it ;  these  are  subjects  of  express  agreement, 
and  require  potential  ownership  in  the  trustee.  The}'  are  too  complex, 
and  partake  too  much  of  the  nature  of  contracts,  to  belong  to  the  class 
of  pure  and  simple  trusts,  the  sole  operation  of  which  is  to  vest  the 
estate  in  the  actual  purchaser,  in  exclusion  of  the  noininal  grantee,  and 
not  to  regulate  the  equitable  rights  and  interests  of  those,  for  whose 
benefit  the  legal  owner  may  be  under  a  moral  obligation  to  hold  or 
apply  it.     An  implied  trust  seems  often  to  partake  of  the  character  of 


(1)  "VTalk  Intro.  311;  Slaymaker  v.  St. 
Jolin,  5  Watts,  27  ;  llaglliorp  v.  Hook,  3 
llayw.  67  :  Nealo  v.  llagtliorp,  3  Bland,  582  ; 
Elliott  V.  ArmstronfT,  2  BUiokll  198;  Jenisori 
V.  Graves,  lb.  440 ;  Holmes  v.  Trout,  1 
McL.  9;  Brooks  v.  Dent,  1  Md.  Ch.  523; 
Hollis  V.  Hayes,  lb.  479;  Stephenson  v. 
Thompson,  13  lllin.  186. 


(2)  Miami  Ex.  Co.  v.  Bank  of  United  States 
Wright,  249. 

(3)  Cook  V.  Fountain,  3  Swanst.  585  ;  (1  J. 
J.  Mar.  3  ;    1  Bibb.  G09.) 

(4)  2  Story's  Comm.  on  Equ.  439. 

(5)  lb.  438.     See  1  Lom.  Dig.  200. 

(6)  Kisler  v.  Kisler,  2  Watts,  324 ;  2  Story, 
443. 


[a)  The  Rhode  Island  statute  contains  no  exception,  but  this  is  implied.  Hoxie  v.  Carr, 
1  Sumn.  18G-7. 

(b)  A  pays  with  B's  money,  and  takes  a  deed  to  himself:  no  trust  result,'".  A  pays  with 
his  own  money,  and  takes  liie  deed  to  B  :  this  makes  a  resulting  trust.  (But  see  2  Story, 
445.)     Blair  v.  Bass,  4  Blackf.  519 ;  Foster  v.  Trustees,  &c.,  3  Alab.  N.  S.  302. 


312  TRUSTS.     IMPLIED  AND  [CHAP.  XXIII. 

an  executed  use,  being  saleable  on  execution  and  autborizing  an  eject- 
ment against  tbe  trustee.(l) 

9.  In  general  it  is  said,  no  resulting  trust  can  arise,  in  contradiction 
to  tbe  terms  of  a  deed. (2) 

10.  It  bas  been  already  seen,  (p.  30,)  tbat  equity  regards  money, 
wbicb  bas  been  agreed  to  be  turned  into  land,  as  land.  From  this 
principle  arises  an  important  class  of  implied  trusts.  After  a  written 
contract  for  conveyance  of  land,  and  payment  of  tbe  price,  tbe  bolder, 
until  a  conveyance  is  actually  made,  becomes  a  trustee  for  tbe  otber 
party.  So,  a  subsequent  purchaser  witb  notice  from  bim.  And  such 
purchaser  must  be  joined  in  a  suit  for  specific  performance.(3) 

11.  After  payment  of  the  price,  if  tbe  vendor  and  purchaser  conspire 
to  protect  the  land  from  creditors  of  the  latter,  Chancery  will  give 
relief.(4:) 

12.  Where  one  person  pays  the  money  for  the  purchase  of  land,  but  the 
conveyance  is  made  to  another,  (as  bas  been  stated,  sec.  7,)  the  former 
bas  a  resulting  trust  in  the  land.  So,  also,  where  a  joint  conveyance  is 
made  to  both,  whether  to  bold  concurrently  or  successively  ;(a)  and  such 
payment  of  the  money  may  be  proved  by  parol  evidence.(5) 

13.  But  the  money  must  be  paid  before  or  at  tbe  time  of  the  convey- 
ance, in  order  to  raise  a  resulting  trust.(6)  A  subsequent  advance  of 
money,  either  to  tbe  grantee  or  the  grantor,  may  be  evidence  of  a  new 
loan,  or  the  ground  of  some  new  agreement ;  but  will  not  attach,  by  re- 
lation, a  trust  to  the  original  purchase  ;  for  the  trust  arises  out  of  tbe 
circumstance,  tbat  the  moneys  of  the  real,  not  the  nominal,  purchaser, 
formed  at  the  time  the  consideraticm  of  tbat  purchase,  and  became  con- 
verted into  the  land.(6)  And  the  mere  charging  of  a  third  person  witb 
the  price  of  the  land,  by  the  nominal  purchaser,  will  not  raise  a  trust  for 
the  fbrmer.(7)(c) 


(1)  White  V.  Carpenter,  2  Paige,  238-9. 
See  Doe  v.  Rock,  1  C.  &  Mar.  549. 

(2)  Hoxie  V.  Carr,  1  Sumn.  188. 

(3)  Davie  v.  Beardsiiam,  1  Cha.  Ca.  39; 
Acherley  v.  Vernon,  9  Mod.  78 ;  Astor  v. 
L'Anioreux.  4  Saudf.  524;  Stone  v.  Buckner, 
12  S  &  M.   73. 

(4)  Forsyth  v.  Clark,  3  Wend.  637. 

(5)  2  Story,  443  ;  2  Vent.  361 ;  Riddle  v. 
Emerson,  1  Vern.  109;  Willisv.  Willis,  2  Atk. 
71;  Lloyd  v.  Spillett,  lb.  150;  Sugd.  on 
Vend.  2,  152  ;  3  Mas.  347 ;  2  John.  Cha.  4  05  ; 
Cox  t).  Grant,  1  Yea.  166;  Baker  t'.  Viuing. 
30  Maine,  121 ;  Thomas  v.  Walker,  6  Humph. 
93;  Murdock  v.  Hughes,  7  S.  &  M.  219; 
Coates  V.  Woodn-ortli,  13  Illin.  654;  Liver- 
more  V    Aldrich,  5    Cush.  431 ;   Williams  v. 


Hollingsworth,  1  Strobh.  Eq.  103;  Mahorner 
V.  Harrison,  13  S.  &  M.  53;  Stephenson  v. 
Thompson.  13  Illin.  186.  See  Work  v.  Work, 
2  Harr.  316;  Tarpley  v.  Poage,  2  Tex.  139; 
Watson  V.  Le  Row,  6  Barb.  481  ;  Dudley  v. 
Bosworib,  10  Humph.  9;  Hollis  v.  Hays,  1 
Md.  Ch.  479;  Lindsey  v.  Platner,  23  Miss. 
576. 

(6)  Botsford  v.  Burr,  2  John.  Cha.  409; 
Hoxie  V.  Carr,  1  Sumn.  188;  Seward  v.  Jack- 
son, 8  Cow.  406  ;  Foster  v.  Trustees,  &c.,  3 
Alab.  N.  302  ;  13  S.  &  M.  53  ;  Smith  v  Snck- 
ett,  5  Gilm.  534 ;  Alexander  y.  Tarns,  13  Illin. 
221 ;  Perry  v.  McHenry,  lb.  227.  But  see 
Hardens.  Harden,  2  Sandf.  Ch.  17. 

(7)  Steere  v.  Steere,  5  John.  Ch.  19. 


(a)  This  is  said  to  be  a  clear  result  of  all  the  cases,  without  a  single  exception.  2  Sugd. 
152. 

{h)  The  claimant  must  have  occupied  a  position  originally,  which  would  entitle  him  to  be 
substituted  for  the  grantee.     Alexander  v.  Tarns,  13  Illin.  221 ;   Perry  v.  McHenry,  lb.  227. 

(c)  So  where  A  agreed  to  convey  land  to  B,  upon  his  paying  so  much  money  at  specified 
times,  and  a  part  had  been  paid;  held,  there  was  no  resulting  trust.  Coimerv.  Lewis,  4Shepl. 
268.  But  if  A  buj's  land  and  takes  a  deed  in  the  name  of  B,  B  advancing  the  purchase- 
money  and  taking  A's  notes  therefor,  with  the  agreement  to  convey  to  A  upon  being  repaid ; 
this  may  be  considered  as  a  loan  of  the  money,  and  a  resulting  trust  to  A.  Page  v.  Page,  8 
N.H.  187. 


CHAP.  XXIII.]  RESULTING  TRUSTS.  ell 8 

l-Jr.  It  is  not  to  be  un<lcr.stood,  that  actna\  payment  of  moneij  is  neces- 
sary to  constitute  a  resulting  trust.  Any  other  valuable  consideration 
will  undoubtedly  have  the  same  effect.  Thus,  the  agrei.ment  of  one 
person  to  form  a  settlement  and  commence  improvements  upon  lands, 
to  be  conveyed  to  another  for  his  benefit,  is  a  sullicient  consideration  to 
raise  an  implied  trust  lor  the  former.(l)  _ 

15.  To  constitute  a  resulting  trust,  the  parol  evidence  of  a  payment 
b}^  the  real  purchaser  must  be  clear  and  undoubted,  especially  alter  a 
long  time  has  elapsed  ;  of  so  positive  a  character  as  to  leave  no  doubt 
of  the  fact,  and  at  the  same  time  so  clearly  defining  the  trust,  as  that 
the  court  may  see  what  is  requisite  for  its  due  execution.  Evidence  of 
naked  declarations,  made  by  the  nominal  purchaser,  is  most  unsati.slac- 
torj^,  being  so  easily  fabricated,  and  from  the  impossibility  of  contra- 
dicting it.  And,  on  the  other  hand,  the  implication  resulting  from  this 
fact,  called  by  Lord  Mansfield  "an  arbitrary  implication,"  may  be  re- 
butted by  parol  evidence  to  the  contrary. (a)  Before  the  statute  of 
frauds,  a  resulting  trust  might  be  controlled  by  a  verbal  declaration  of 
trust ;  and,  as  this  statute  docs  not  in  any  way  affect  implied  trusts,  the 
old  law  remains  unaltered.  More  especially  is  such  evidence  admissible 
to  rebut  a  resulting  trust,  where  the  purchase  is  made  by  a  father, 
partly  in  the  name  of  his  son,  although  the  flither,  during  his  life,  took 
the  profits  of  the  land.  But  parol  evidence  is  inadmissible  to  rebut  a 
resulting  trust,  arising  from  written  instruments,  unless  the  latter  be 
loose  and  ambiguous.(2) 

16.  It  is  said  to  be  doubtful,  whether  parol  evidence  is  admissible  to 
prove  a  resulting  trust,  against  the  answer  of  the  trustee  denying  it. 
And,  in  cases  of  this  nature,  the  party  claiming  in  opposition  to  the 
legal  title  should  not  delay  asserting  his  right,  as  a  stale  claim  would 
meet  with  little  attention. (3)  The  lapse  of  t^wenty-six  years  has  been 
held  to  bar  the  claim  of  a  resulting  trust.(l:) 

17.  It  has  been  said,  that  the  admission  of  parol  evidence  to  raise  a 
resulting  trust,  where  the  consideration  is  expressed  to  be  paid  by  the 
nominal  purchaser,  and  there  is  nothing  in  the  deed  which  implies  the 
contrary,  is  limited  to  the  life  of  such  purchaser ;  that  even  his  ow^n 
confession  cannot  be  proved  by  the  testimony  of  a  third  person,  but 
must  be  made  under  a  judicial  examination  upon  oath,  or  by  the  party's 
own  answer  in  equity,  which,  after  his  death,  of  course  cannot  be  had. 


(1)  Malin  v.  Malin,  1  Wend.  625. 

(2)  Malin  v.  Malin,  1  Wend.  625  ;  Liver- 
more  V.  Aldricli,  5  Cusli.  4.S1  ;  Finch  v.  Finch, 
15  Ves.  43  ;  Lampluph  v.  Lanipluj^h,  1  P. 
Wnis.  Ill;  1  John.  Cha.  59;  2,  416;  Mc- 
Guire  v.  McGower,  4  Des.  Cha.  491  ;  2  Su?. 
153;  Bellasis  v.  Compton,   2    Vern.    294;   5 


551 ;  3  Mas.  362  ;  3  Littell,  399 ;  North 
Hempstead  v.  Hempstead,  2  Wend.  109 ;  2 
Sugc.  158;  Harrison  v.  Mennomy,  2  Edw. 
Cha.  251 ;  Carey  v.  Callaii,  6  B.  Mon.  44. 

(3)  2  Sug.  154-5  ;  Fisher  v.  Tucker,  1 
M'Cord's  Cha.  169-76;  Elliott  v.  Armstrong, 
2  Blackf.  198  ;  Jenison  v.  Graves,  lb.  440. 


John.  Ch.  1 ;  Dorsey  v.  Clark,  4  Ilar.  &  Jolin.  1      (4)  Shaver  v.  Radley,  4  John.  Cha.  316, 

(a)  B  paid  the  purchase-money  of  an  estate  convoyed  by  a  third  person  to  A,  who  agreed 
to  convey  it  to  B,  suhject  to  a  mortgage;  and  A  and  B  afterwards  agreed,  that  A  should 
raise  additional  money  hy  another  mortgage,  and  convey  the  estate  to  B,  subject  to  the  two 
mortgages.  B  subsiquently  accepted  of  A  a  deed  of  the  estate  subject  to  tiie  two 'mort- 
gages, the  latter  of  wliich  was  never  in  fact  made.  Held,  the  presumption  of  a  resullnig 
trust,  raised  by  tiie  first  agreement,  was  rebutted  by  the  subsequent  agreement,  and  the 
acceptance  of  the  deed.     Livermore  v.  Aldrich,  5  Cush.  431. 


314  TRUSTS.     IMPLIED  AND  [CHAP.  XXIII. 

But  Mr.  Sugden  doubts  the  correctness  of  this  opinion,  and  refers  to 
some  very  late  authorities  against  it.(a)  Judge  Story  thinks,  that  any 
dechiration  or  confession  made  by  the  party  in  his  life  is  sufficient 
evidence.  So,  also,  any  expression  or  recital  in  the  deed  itself;  a 
memorandum  or  note  made  by  tlie  nominal  purchaser;  papei's  left  by 
him,  and  discovered  after  his  death  ;  and,  it  seems,  his  answer  to  a  bill 
of  di.scovery.(l) 

18.  In  New  York,  Kentucky  and  Indiana,  parol  evidence  is  received 
against  the  answer  of  the  purchaser  denying  the  trust,  and,  it  seems, 
even  after  the  purchaser's  death.  But  such  evidence  shall  be  received 
with  great  caution. (2)(/>) 

19.  It  has  been  held,  that  a  resulting  trust  might  be  proved  by  evi- 
dence merely  circumstantial ;  as,  for  instance,  the  poverty  of  the  nom- 
inal purchaser,  and  his  inabiliiy  to  pav  for  the  estate.(3)  This,  it  seems, 
must  come  in  aid  merely  of  other  proof. 

20.  A  resulting  trust  may  be  rebutted  as  to  a  part  of  the  laud  itself, 
or  a  part  of  the  interest  in  the  land. (4) 

21.  It  has  been  said,  that  no  trust  will  result,  unless  the  party  inter- 
ested pay  the  ivlwle  consideration.  This  doctrine,  however,  seems  to 
have  been  overruled  in  England,(5)  and,  in  Pennsylvania,  a  purchase 
with  trust-money,  in  whole  or  in  part,  gives  to  the  owner  of  the  money 
a  proportional  interest  in  the  land.  So,  in  Kentucky,  where  slaves 
were  purchased  by  A,  in  part,  with  the  money  of  B  ;  held,  a  trust  re- 
sulted to  B  pro  tanto.  So,  where  land  is  purchased  by  several  persons, 
and  a  joint  deed  received,  a  trust  results  in  favor  of  each,  to  the  extent 
of  the  amount  paid  or  secured  by  him.  And,  in  enforcing  specific 
performance,  conveyances  will  be  decreed  to  each,  in  like  proportion. 
And  parol  evidence  may  be  admitted  to  show  the  amount  so  paid  or 
secured. (6)(c) 

22.  It  is  held  in  New  York,  that  to  constitute  a  resulting  trust,  the 
transaction  must  vest  an  absolute  title  in  the  cestui,  making  the  trustee 
a  mere  conduit-pipe  or  channel  to  convey  the  estate  to  him.  It  is  not 
sufficient  that,  under  a  contract  with  the  trustee,  the  cestui  is  to  have  a 


(1)  2  Story,  444  n.;  LloydV  Spillett,  2  Atk. 
150  n.;   2  Sug.  156-7. 

(2)  Boyd  v.  M'Lean,  1  Joluis.  Cli.  5S2;  Snel- 
ling  V.  Ulterback,  1  Bibb.  609;  4  Blackf.  539. 

(3)  Willis  V.  Willis,  2  Atk.  71. 


(4)  Benbow  v.  TowiiPend,  1  My.  &  K.  506.  '  Porter,  6,  106. 


(5)  Crop  V.  Norton,  9  Mod.  235  ;  Wray  v. 
Steel,  2  Ves.  &  Beam.  322,  355. 

(6)  Kisler  v.  Kisler,  2  Watts,  324;  3  Bibb, 
15;  Shoemaker  v.  Smith,  11  Humph.  81: 
Pierce  v.  Pierce,  7  B.  Mod.  433 ;  Brothers  v. 


{a)  Particularly  the  case  of  Lench  v.  Lench,  10  Yes.  511,  in  which  Sir  Wm.  Grant 
remarked,  that  whatever  doubts  might  have  been  formerly  entertained  on  the  subject,  it  is 
now  settled,  that  (after  the  death  of  the  alleged  trustee)  money  may  be  followed  into  the 
land  in  which  it  was  invested  ;  and  a  claim  of  this  sort  may  be  supported  by  parol  evidence. 
A  devisee  may  claim  on  account  of  money  paid  by  the  testator,  iiahorne  v.  Harrison,  13  S. 
&  M.  53.  A  resulting  trust  may  be  proved  against  heirs  by  parol  admissions  of  the  ances- 
tor.    Harder  v.  Harder,  2  Sandf  Ch.  17. 

(Z»)  In  Indiana,  the  bill  must  be  supported  by  two  witnesses,  or  one  with  corroborating 
circumstances.     Blair  v.  Bass,  4  Blackf  539. 

(c)  A  bought  land  and  paid  one-third  of  the  purchase-money,  the  remainder  to  be  paid  in 
instalments.  *  Before  the  instalments  became  due,  A  died,  and  his  widow,  out  of  her  own 
funds,  paid  the  remaining  two-thirds.  The  widow  afterwards  sold  the  land  to  B,  and.  after 
her  death,  the  heirs  of  A  petitioned  for  partition,  and  the  land  was  sold.  Held,  a  resulting 
trust  arose  in  favor  of  those  claiming  under  the  widow,  and  they  are  not  estopped  from  as- 
serting their  rights,  by  tho  setting  off  of  dower  to  the  widow  at  the  partition.  Thompson 
V.  Renoe.  12  Mis.  157. 


CHAP.  XXIII.]  RESULTING  TRUSTS.  315 

lien  upou  the  estate,  or  a  share  in  the  proceeds  of  sale.  Nor  can 
there  be  a  resulting  trust  for  a  certain  amount  of  money.  If  the  trust 
results  only  in  part,  it  must  ho.  for  a  sjiecijied  portion  of  the  estate^  so  as  to 
make  the  parties  tenants  in  common.(i) 

23.  But,  in  the  same  State,  if  a  part  only  of  the  purcha.se-money  be 
paid  by  the  cestui  que  trusty  the  land  Avill  be  charged  ^vith  the  money 
advanced,  p-o  tanio.{2)(a) 

2-i.  It  lias  been  held,  that  where  a  ixirtncr  buys  real  estate  in  his  own 
name  with  the  partnership  funds,  without  any  previous  agreement  with 
his  co-partners,  although  the  joint  business  is  that  of  dealing  in  lands, 
there  is  no  resulting  trust  in  favor  of  the  latter.  Hence,  a  note,  given 
by  the  former  in  his  own  name  for  such  purchase,  does  not  bind  the 
latter.(3) 

25.  But  a  contrar}^  doctrine  has  been  held  in  Pennsylvania,  Arkan- 
sas and  Kentucky;  and  in  equity,  land  purchased  with  partnership 
funds  and  on  joint  account  is  held  partnership  property;  and,  though 
the  grantees  be  called  in  the  deed  tenants  in  common,  parol  evidence  is 
admissible  to  prove  the  facts,  and  rebut  the  very  slight  presumption 
arising  from  this  phrase.(4) 

26.  So,  it  has  been  held  in  Pennsylvania,  that  if  A  buy  land  in  his 
own  name,  under  an  agreement  that  B  shall  be  equally  interested  with 
him,  they  are  tenants  in  common. (5) 

27.  Though  the  evidence  shows  that  a  part  of  the  land  conveyed  was 
intended  as  a  gift;  if  a  consideration  was  paid  for  another  part,  the 
whole  being  included  in  one  deed,  which  expresses  a  consideration  gen- 
erally ;  there  is  a  resulting  trust  for  the  whole.(6) 

28.  A  grantor  with  warranty  cannot  set  up  a  trust  for  himself,  on  the 
ground  ot  an  interest  in  the  purchase-money,  as  being  the  procecils  of 


(1)  White  V.  Carpenter,  2  Paige,  238. 

(2)  Botslbrd  v.  Burr,  2  Jolin.  Clia.  410. 

(3)  Fursyth  v.  Clark,  3  Wend.  637  ;   Pitts 
V.  Waugh,  4  Mass.  424. 

(4)  Phillips  V.  Cramond,  Whart.  Dig.  580  ; 


Hart  V.  Hawkins,  3  Bibb,  606  ;  Hoxie  v.  Carr, 
1  Sumn.  182  ;  2  Wash.  C.  C  441 ;  McGuire 
V.  Ramsay,  4  Eng.  518. 

(5)  Stewart  v.  Brown,  2  Ser.  &  R.  461. 

(6)  Malin  v.  Malin,*  1  Wend.  653f 


*  This  ease  relates  to  the  notorious  Jemima  Wilkinson,  called  by  lier  followers  "  the 
Universal  Friend."  They  supposed  that  her  peculiar  character  and  office  disqualilied  her  to 
hold  property  in  her  own  name.  The  counsel  who  argued  against  the  trust  remarked,  tliat 
her  followers  were  the  only  witnesses  for  the  trust.  "They  believed  they  were  testifying 
in  a  controversy  between  their  God  and  a  mortal ;  and  can  it  be  supposed  that  they  be- 
lieved they  sinned,  when  tliey  obeyed  the  mandates  of  their  Deitj-,  uttered  not  from  Sinai, 
but  from  the  mouth  of  their  God  ?" 

(a)  Where  a  party  seeks  the  benefit  of  a  purchase  made  for  him  in  the  name  of  a  trustee, 
who  has  paid  the  purchase-money,  but  to  whom  he  is  indebted  for  other  advances,  lie  shall 
not  be  relieved,  but  upon  pajmcnt  of  all  tiio  moneys  due  to  the  trustee.  1  Story  Kqii.  78. 
A  trust  estate  can  be  sold  on  execution,  only  wliere  the  cestui  might  immediately  and  un- 
conditionally claim  a  conveyance  from  the  trustee;  not  where  the  latter  would  bo  first  eiiti- 


in  equity.     Gowing  v,  Ricli.  1  Ircd.  553. 

So,  where  a  person  purchases  land  sold  under  execution,  as  the  friend  or  agent  of  the 
debtor,  but  in  his  own  name,  pays  part  of  the  purchase-money,  and  gives  his  own  bond  for 
the  remainder,  the  land  cannot  be  levied  on  by  a  creditor  of  tlie  debtor,  without  first  in- 
demnifying the  purchaser.     Heth  v.  Young,  11  B.  Mon.  278. 


816 


TRUSTS.     IMPLIED  AND 


[CHAP.  XXIII. 


sale  of  other  land,  in  which  the  alleged  trustee  had  only  a  life  interest, 
and  of  which  the  grantor  owned  the  reversion. (I) 

29.  Where  land  owned  by  two  persons  is  conveyed  to  a  third,  and 
reconveyed  to  one  of  the  grantors,  the  other  grantor  has  no  resulting 
trust  in  the  estate. 

80.  The  wife  of  A  owning  lands  in  tail,  they  join  in  a  conveyance 
to  B  in  fee,  who  reconveys  to  A  in  fee.  More  than  a  year  afterwards, 
A  conveys  to  0.  Upon  a  bill  in  equity  by  a  creditor  of  A,  to  set 
aside  the  last  conveyance,  as  fraudulent  against  creditors  ;  held,  no  trust 
could  arise  out  of  these  conveyances  for  A's  wife  and  children,  and 
that  such  trust  was  not  legally  proved  by  a  declaration  of  it  in  the 
answer  to  the  bill,  which  could  have  only  the  weight  of  parol  evi- 
dence.(2) 

81.  The  principle  of  a  resulting  trust,  as  arising  from  the  payment  of 
the  purchase-money  by  one,  and  a  conveyance  to  another,  is  not  appli- 
cable, where  one  man  buys  land  merely  to  benefit  another,  and  admits, 
that,  if  the  latter  will  repay  him  the  purchase-money,  he  will  convey  the 
land  ;(a)  or,  where  a  man  verbally  employs  an  agent  to  purchase  land 
for  him,  but  pays  no  part  of  the  price.  These  facts  constitute  a  mere 
conventional  trust,  or  trust  by  contract,  Avhich  is  void  unless  proved  by 
writing.  So,  where  a  conveyance  is  executed  conformably  to  a 
written  agreement,  no  resulting  trust  can  be  raised  by  parol  evi- 
dence.(8)(  b) 

82.  A  and  B  agree,  by  parol,  to  purchase  land  ;  A  to  make  the  pur- 
chase, and  B  to  pay  one-half  of  the  price  and  take  one-half  of  the  land. 
This  is  a  case  within  the  statute  of  frauds,  and  no  trust  results  to  B.(4) 
So,  if  A  buy  in  his  own  name  and  upon  his  own  credit,  the  stat- 


(1)  Squire  v.  Harder,  1  Paige,  494. 

(2)  Jones  v.  Slubey,  5  Har.  &  Joiixi.  372. 

(3)  Dorsey  w  Clarke,  4  Har.  &  John.  551  ; 


St.  John  V.  Benedict,  6  John.  Ch.  111.     See 
London  v.  Fairclougli,  2  Man.  &  G.  674. 

(4)  Parker  v.  Bodley,  4   Bibb,   102.     See 
Williuk  V.  Vanderveer,  1  Barb.  599. 


(a)  Tlie  mere  violation  of  a  parol  agreement,  in  relation  to  land  purchased  by  one  for  the 
benefit  of  anotlier.  will  not  raise  an  implied  trust  in  favor  of  the  latter,  unless  accompanied 
with  fraud  or  mala  fides.  As,  lor  instance,  when  one  purchases  at  an  execution  sale,  for  the 
benefit  of  the  debtor.  In  such  case,  if  there  be  fraud,  the  vendee  will  hold  in  trust  for  the 
creditors,  and  also  for  the  debtor,  unless  he  was  privy  to  the  fraud.  Robertson  v.  Robertson, 
9  Watts,  36;  Hains  v.  O'Connor,  10,  343,320;  Jackman  v.  Ringland,  4  W.  &  S.  149;  M'Cal- 
loch  V.  Cowber,  5,  427.  See  Willink  v.  Vanderveer,  11  Barb.  599.  If  done  to  defraud  cre- 
ditors, a  creditor  may  file  a  bill  in  equity  to  set  aside  the  conveyance,  so  far  as  to  satisfy  hia 
judgment.  Jackson  v.  Forrest,  2  Barb.  Ch.  576.  "Where  A  procured  a  deed  from  B,  upon 
a  promise  to  hold  the  land  for  C ;  held,  .such  promise  might  be  proved  by  B;  and,  if  A  liad 
sold  the  land,  that  C  might  recover  the  price  paid  from  him.  Miller  t;.  Pearce,  6  W.  &  S.  97. 
"Where  land  was  purchased  at  the  land  office  by  A  in  trust,  and  with  the  understanding  that 
he  should  deed  to  the  two  claimants  B  and  C,  to  B  all  west  of  a  certain  road,  and  to  C  the 
residue,  and  B  furnished  A  with  the  necessary  entrance  money  for  his  portion  of  the  land, 
prior  to  the  purchase ;  held.  A,  as  trustee,  was  responsible  to  B  for  his  portion  of  the  land. 
Russell  V.  Lode,  1  Greene,  566. 

It  has  been  held  that  a  trust  may  result,  where  the  purchase-money  is  advanced  by  a 
third  person  as  a  loan  or  gift  to  the  cestui.     Getman  v.  Getman,  1  Barb.  Ch.  499. 

"Where  a  clerk  in  a  store  pilfers  from  his  employer,  and  with  the  money  purchases  land, 
he  cannot  be  held  as  the  tru.stee  of  the  land  for  the  benefit  of  his  employer,  so  as  to  enable 
him  to  compel  a  conveyance  of  the  legal  title.     Campbell  v.  Drake,  4  Ired.  Kq.  94. 

(b)  But  where  A  paid  for  land,  and  B  agreed  to  procure  a  deed  for  him,  but  took  a  deed 
to  himself;  held,  A  might  maiutaia  a  bill  in  equity  against  B.  Pillsbury  v.  PiUsbury,  5 
Shepl.  107. 


CHAP.  XXIII.] 


RESULTING  TRUSTS. 


317 


ute  of  frauds  is  apjjlicuble  ;  and  it  cannot  be  proved  by  parol  evidence, 
that  the  purchase  was  made  for  another's  benerit.(l)  So,  where  a  son 
conveyed  laud  to  his  father,  nominally  as  a  jjurehaser,  but  in  reality  as 
a  trust,  to  enable  the  father  to  raise  money  for  the  son  by  mortgage,  and 
the  father  died  without  raising  the  money  ;  held,  though  the  son  had  a 
lien  for  the  price  of  the  land,  parol  evidence  of  the  trust  was  ijiadrnissi- 
ble.  Judge  Story  says,  this  case  stands  upon  the  utrrmst  limits  of 
the  doctrine  of  the  inadmissibility  of  parol  evidence  as  to  resulting 
trust6.(2) 

38.  A  purchase  by  a  third  person  at  sheriff's  sale,  with  the  money 
or  on  account  of  the  judgment  debtor,  raises  a  trust  lor  the  latter.(3) 

33  a.  Where  a  judgment  was  recovered  in  the  name  of  A,  and  with 
his  knowledge  and  consent,  for  the  benefit  of  B,  and  an  execution  is- 
sued thereon  was  levied  on  the  land  of  the  debtor,  which  was  set  off  to 
A ;  hehl,  the  legal  estate  thereby  vested  in  A,  in  trust  for  B,  and  A 
was  bound  to  release  his  title  to  B,  who  might  maintain  a  bill  in  equity 
for  such  conveyance.  B  having  brought  his  bill  in  equity,  in  the  alter- 
native, either  for  a  conveyance,  or  for  a  compensation  in  damages,  and 
it  api)earing  that  A  had  previously  sold  and  conveyed  the  land,  and  re- 
ceived the  purchase-money,  and  thereby  disabled  himself  from  making 
a  conveyance  ;  held,  B  was  entitled  to  recover  the  amount  of  the  pur- 
chase-money and  interest,  or,  at  his  election,  a  sum  equivalent  to  the 
present  value  of  the  land.(4) 

33  0.  A,  finding  himself  insolvent,  gave  to  his  sureties,  on  a  guar- 
dian's bond,  a  note  for  the  deficiency  in  his  guardian  account;  they 
sued  the  note,  and  obtained  judgment  and  partial  satisfaction,  by  levy- 
ing on  real  estate  and  having  it  set  off  to  them  jointly.  After  the  levy, 
kc,  one  of  the  sureties,  B,  paid  the  deficiency  in  the  guardian's  account. 
Held,  up  to  the  time  of  that  payment  there  existed  a  resulting  trust  in 
favor  of  A,  the  principal  ;  that  the  right  to  insist  upon  this  trust  was  not 
barred  bv  the  lapse  of  time,  wdiich  bars  the  action  for  contribution  ;  and 
that  facts  necessary  to  establish  the  trust  might  be  shown  by  parol  evi- 
dence. Held  also,  that  upon  the  payment  by  B,  a  new  trust  arose  in 
flivor  of  the  sureties  themselves,  in  the  proportions  in  which  they  had 
contributed  towards  the  deficiency,  and  the  necessary  expenses  and 
taxes.(5) 

34.  No  trust  shall  result  to  an  alien. (a)  It  would  be  a  fraud  upon 
the  rights  of  the  State  and  the  laws  of  the  land.  If  the  alien  is  to  have 
the  proceeds  of  the  land,  after  satisfaction  of  certain  express  trusts  by 
a  sale,  the  surplus  escheats,  and  may  be  reached  in  equity  by  the  State. 
So,  if  the  alien  is  to  have  the  rents  and  profits,  the  Slate  may  claim 
them  in  equity. (6) 


(1)  Fowko  V.  Uaugliticr,  3  Marsh.  57. 

(2)  Leman  v.  Wliitley,  4  Russ.  422  ;  2 
Story  oil  Kq  442  ii. 

(S)  Deatly  v.  Murpliy,  3  Mar.  477  ;  Denton 
v.  M'Kptizie,  1  Dessau.  2S9 ;  Pegues  v.  Pe- 
gues,  5  Ired.  Equ.  418. 


(4)  Peabody  v.  Tarbell,  2  Cusli.  22G. 

(5)  Rrooks  v.  Fowle,  14  N.  II.  248. 

(6)  Phillips  z.  Cramond,  Wliart.  J>i'r.  580; 
Leprgett  v.  Dubois,  5  Paigo,  114;  3  Leigh, 
492. 


(a)  But,  where  there  was  a  devise  in  trust  to  sell  and  divide  the  proceeds  among  certaia 
persons,  some  of  wiiom  were  aliens;  and  a  sale  was  accordingly  made  under  a  decree;  iield, 
the  owner  could  not  claim  any  part  of  the  money.  Du  Hourmelin  v.  Sheldon,  4  My.  &  C. 
525. 


318 


TRUSTS.    IMPLIED  AND 


[CHAP.  XXIIL 


35.  In  New  York,  wliere,  as  will  be  seen  (oh.  26,)  the  whole  doctrine 
of  uses  and  trusts  has  been  fuiidamentally  changed,  no  trust  shall  result 
to  a  party  who  pays  the  purchase-money  for  land,  except  so  far  as  to 
make  the  land  liable  for  his  debts  existing  at  the  time.(l)(o) 

86.  In  Massachusetts,  Maine  and  New  Hampshire,  (substantially)  it 
is  provided  by  statute  that  no  trust  shall  be  valid  without  writing,  "ex- 
cepting such  asm:ty  arise  or  result  by  implication  of  law  ;"  and  that  no 
trust'shall  be  valid  against  a  subsequent  conveyance  or  seizure  on  legal 
process,  unless  the  purchaser  or  creditor  had  notice,  express  or  im- 
plied.(2) 

37.  It  had  been  previously  decided  in  Massachusetts,  that  payment 
of  the  purchase-money  of  land  raised  no  trust  in  favor  of  the  party  pay- 
ing it,  though  the  grantee  gave  him  a  bond  to  convey  to  his  order. 
Also,  that  there  was  in  such  case  no  fraud,  which  would  render  the 
land  liable  to  creditors  of  the  real  purchaser.  Perhaps  such  a  transac- 
tion might  constitute  an  unlawful  conspiracy. (3)(a) 

38.  The  Court  in  New  Hampshire  remark, (4)  that  Massachusetts  is 
the  only  State  where  resulting  trusts  have  not  been  treated  as  excepted 
from  the  operation  of  the  statute  of  frauds.  In  the  same  case  they  re- 
mark, that  the  usual  clause  in  deeds,  acknowledging  receipt  of  the  con- 
sideration, states  only  who  'paid  the  rnoney^  not  who  owned  it.  The 
ownership  is  a  mere  inference  or  presumption  from  the  payment,  and 
therefore,  on  general  principles^  may  be  rebutted  by  parol  evidence. 
Besides,  such  clause  is  a  mere  receip)t,  which  is  always  open  to  contra- 
diction. And  the  evidence  in  question  does  not  go  to  defeat  the  convey 
ance.  Moreover,  the  statute  of  frauds  provides,  that  no  grant,  assign- 
ment, &c.,  of  a  trust  hy  any  person^  shall  be  valid  without  a  writing. 
But  a  resulting  trust  is  a  mere  creature  of  the  law.  Hence,  it  is  con- 
cluded, that  the  statute  would  not  apply  to  resulting  trusts,  even  if 
there  were  no  excepting  clause. 


(1)  IN.  Y.  Rev.  St.  728. 

(2)  Mass.  Rev.  St.  408;  N.  H.  Rev.  St. 
244-5;  Me.  Rev.  St.  374.  See  Mas.s.  St.  1844, 
289. 

(3)  Storer  v.  Batson,  8  Mass.  442;  Jenney 
V.  Alden,  12  Mass.  375;  Northampton,  Ac.  v. 


Whitin<?,  lb.  104. 

(4)  Pritchard  v.  Brown,  4  N.  H.  399-400- 
1 ;  Page  v.  Page,  8,  187,  (holding  that  a  re- 
sulting trust  may  be  eitiier  raised,  rebutted, 
or  discharged  by  parol.)  See  Brooks  v.  Fowle, 
14  N.  H.  248. 


{a)  Land  paid  for  by  A  was  conveyed  to  B,  in  order  to  secure  it  from  A's  creditors.  A 
took  possession  under  a  lease  from  B,  and  his  creditors  levied  upon  the  land  as  A's  property. 
Held,  tiiey  could  not  recover  possession  from  B  by  writ  of  entry.  Howe  v.  Bishop,  3  Met. 
26.  Whether,  under  similar  circumstances,  B  could  have  maintained  his  title  as  dtmandant, 
A  being  in  possession,  qu.     That  he  could  not,  see  Goodwin  v.  Hubbard,  15  Mass.  210. 

It  has  been  recently  held,  that  a  trust  resulting  by  implication  of  law  is  not  within  the 
statute  of  frauds  of  Mnssacliusetts,  (Rev.  Sts.  c.  59,  sec,  30  ;)  but  may  be  proved  by  parol.  • 
Peabody  v.  Tarbell,  2  Cush.  226.     Also,  that  the  Supreme  Court  has  jurisdiction  of  implied 
as  well  as  of  express  trusts.     Whitten  v.  Whitten,  3  Cush.  191. 

If  it  appear  on  the  face  of  a  bill  in  equity,  brought  to  enforce  a  tru.st,  not  arising  by  impli* 
cation,  and  concerning  land,  that  it  vests  in  parol ;  the  statute  of  frauds  may  be  relied  on 
under  a  demurrer.  Walker  v.  Locke,  5  Cush.  90.  The  following  important  case,  recently 
decided  in  the  Circuit  Court  of  the  United  States  for  the  district  of  Massachusetts,  may  be 
cited  as  illustrating  the  doctrine  of  resulting  trusts,  in  connection  with  other  important  points 
of  equity  juri.sprudetice. 

A  purchased  at  auction,  from  D,  a  lot  of  land,  and,  on  the  failure  of  A  to  comply  with  the 
terms  of  sale,  D  entered  and  took  possession,  but,  on  application  by  A  was  enjoined  from 
making  sale  thereof.     A  new  arrangement  was  then  made,  by  which  D  placed  a  warranty 


CHAP.  XXIIL]  RESULTING  TRUSTS.  319 

89.  Similar  observations  Lave  been  made  by  Judge  Stor3\(l)  lie 
remarks,  in  reference  to  a  resulting  trust,  that  the  parol  evidence  (Joes 
not  establish  an}'  fact,  inconsistent  with  the  legal  o))cration  of  the  words 
of  the  deed ;  but  merely  engrafts  a  trust  upon  the  legal  estate  ;  and  that 
the  exception  of  resulting  trusts  from  the  statute  of  frauds  is  mercl}* 
affirmative. 

40.  Where  property  is  given  to  one,  in  trust  to  buy  laiTils  for  anoth- 
er's benefit,  and  he  does  purchase  lands,  equity  will  presume  that  he 
intended  to  act  in  pursuance  of  the  trust.  So  where  one  covenants  to 
lay  out  money  in  lands,  or  pay  it  to  trustees  to  be  thus  laid  out.  But 
the  mere  fact  of  his  buying  land  will  not  be  sufficient  to  create  a  result_ 
ing  trust  in  favor  of  the  other  part}^,  without  some  other  ground  to  prc_ 

(1)  Iloxie  V.  Carr,  1  Sumn.  186-7.  In  i  ration  and  without  notice.  But  registration 
Micliigai),  even  an  implied  trust  is  invalid,  of  the  deed  is  sufficient  notice.  Rev.  St.  2G1 
against  creditors  and  purchasers  for  conside-  I 


deed  in  the  hands  of  P,  in  escrow,  agreeing:  that  it  should  be  rendered  to  A  on  a  certain  day, 
provided,  that  by  sucli  day  A  had  complied  with  certain  terms  of  payment,  A  making  a  de- 
posit of  $1,000  as  forfeit  money.     A  then  proceeded  to  build  on  said  land,  but,  failing  in  his 
means,  was  unable  to  comply  with  his  agreement.     D  then  threatened  to  sell  the  premises, 
and  A  filed  a  second  bill  in  equity  to  restrain  the  sale,  and  an  injunction  was  granted,  and 
an  interlocutory  decree  was  passed,  that  if  A  should  perform  his  agreement  before  a  certain 
time,  the  injunction  should  stand  continued,  but  otherwise  should  be  dismissed.     A  failed  to 
perform  his  agreement,  and  the  bill  was  accordingly  dismissed.     In  the  intermediate  time, 
however,  between  the  decree  and  the  dismissal  of  tlie  bill,  A,  having  expended  large  sums 
on  tlie  building,  and  exhausted  his  resources,  applied  to  E  for  aid  to  raise  money  to  complete 
the  building,  and  discharge    the  debts.     It  was  arranged  between  them,  that  an  absolute 
conveyance  should  bo  made  by  D  to  K,  wliich  was  done,  and  on  the  same  day  A  executed 
a  release  of  all  interest  to  E,  to  complete  the  title,  excluding,  in  terms,   •'  all  claims  and  de- 
mands made  by,  through,  or  on  accoutitof  A,  and  also  excepting  any  claim  or  demands  ari- 
sing out  of  any  contract  made  by  or  with  A,"  and  admitting  that  A  had  no  legal  or  equitable 
right  in  the  same.     E  then  assumed  the  ostensible  ownership  of  the  property,  anrj  A  was 
employed  in  superintending  the  execution  of  the  building,  and  procured  securities  to  assist 
in  raising  funds,  and  procured  work  to  be  done  on  his  own  account.     K  afterwards  sold  the 
premises  to  K.     A  bill  was  then  brought  by  A  against  E  and  K^  setting  forth,  that,  at  the 
time  of  making  the  absolute  conveyance  to  E,  although  no  paper  to  such  effect  was  executed, 
yet  it  was  understood  between  E  and  A,  that  the  premises  were  to  be  held  by  E,  in  trust 
for  the  benefit  of  A,  and  the  conveyance  was  made  absolute  solely  for  the  purpose  of  freeing 
the  premises  from  all  claims  by  or  through  A,  and  that  E  was  only  to  receive  a  remunera- 
tion for  any  services  which  he  might  perform,  and  an  indemnification  for  his  expenses,  and 
then  to  reconvey  the  estate  to  A  ;  and  ?>lso,  that  K  was  not  a  bona  fide  pnTchaser,  lor  a  valu- 
able consideration,  without  notice.     Held,  the  circumstances  showed  no  sufficient  motive,  on 
the  part  of  A,  to  make  an  absolute  and  unrestricted  conveyance,  but  were  perfectly  consis- 
tent with  the  parol  trust  as  sec  up  by  the  bill;  2.  as  a  decree  in  the  equity  suit  was  not  a 
dismissal  upon  the  merits,  it  did  not  constitute  an  absolute  bar  to  a  future  suit ;  3.  the  re- 
lease by  A,  though  absolute  in  its  terms,  was  indispensable  to  guard  the  property  against 
A's  creditors,  so  as  to  induce  capitalists  to  advance  funds,  and,  therefore,  was  not  inconsis- 
tent with  a  parol  trust,  and  the  evidence  showed  E  to  be  acting  as  A's  agent ;  4.  if  K,  know- 
ing that  A  intended  he  should  act  as  agent,  did  really  intend  to  act  for  his  own  benefit  solely, 
the  concealment  from  A  of  such  purpose  was  a  fraud  in  equity;  5.  This  was  a  parol  trust, 
resulting  from  agency,  and  resting  upon  honorary  obligations,  and  as  such,  equity  would  en- 
force it;  6.   It  was  not  within  the  statute  of  frauds,  heing  a  resulting  trust  as  to  A,  and  a 
trust  as  to  E  merely  for  his  liabilities,  compensation  and  expenditures ;  because  it  was  a  case 
of  agency,  of  constructive  fraud,  and  of  part  performance;  7.  K  was  not  a  bona  file  purcluiaer 
without  notice,  because,  even  if  uninformed  of  the  actual  state  of  the  title  and  A's  claim,  he 
had  sufficient  notice  of  the  claim  and  controversy,  to  put  him  on  inquiry,  which  was  suffi- 
cient notice  in  equity.     8.  Tiiough  A  miglit  never  have  been  able  to  fulfil  ids  agreement  witli 
E  by  discliarging  the  incumbrances  and  remunerating  him;  )-et  this  did  not  in  equity  ex- 
tinguisli  A's  rights,  though  it  might  furnisli  reason  for  foreclosing  his  right  and  orJeriug  a 
sale  upon  E'3  application.     Jenkins  v.  Eldredge,  3  Story,  181. 


320 


TRUSTS.     IMPLIED  AND 


[CHAP.  XXIII. 


sume  that  the  land  was  purchased  with  the  trust-money.     It  has  been 
said,  that  the  evidence  of  this  fact  must  be  clear.(l) 

41.  Ilence,  where  the  trustee  had  died  after  such  purchase,  leaving 
no  personal  assets;  it  was  held  that  the  party,  claiming  to  be  cestui 
que  trust,  stood  only  on  the  footing  of  a  simple  contract  creditor,  and 
had  no  lien  upon  the  lands  purchased. (2) 

42.  Where  the  trust  money  is  identified,  a  trust  will  result,  accord- 
ing to  some  authorities,  although  the  investment  is  not  in  pursuance, 
but  in  violation^  of  the  trust.  But  others  hold,  that  in  such  case  the 
party  interested  has  a  mere  lien. (3) 

43.  Where  a  trust  results,  in  consequence  of  a  payment  of  the  pur- 
chase-money of  land,  either  by  the  cestui  or  another  for  his  benefit,  the 
cestui  may,  at  his  election,  claim  the  money  instead  of  the  land.(4) 

44.  Another  case  of  resulting  trust  is  this:  Where  land  is  conveyed 
ivithout  consideration^  express  or  implied,  and  no  other  distinct  use  or 
trust  is  stated,  a  trust  results  to  the  grantor.  But  the  consideration 
mav  be  either  good  or  valuable.  This  rule  is  conformable  to  the  an- 
cient law  of  uses,  by  which  the  burden  of  proof  was  ou  the  feoffee  to 
show  a  consideration,  and  not  on  the  feoffor  to  show  a  trust,  (for  him- 
self.)(5)(a) 

45.  The  doctrine  of  resulting  uses  first  introduced  the  notion,  that 
there  must  be  a  consideration  expressed  in  the  deed,  otherwise  a  trust 
would  result.  But  this  rule  as  to  implied  trusts  does  not  embrace 
every  voluntary  conveyance,  and  the  smallest  consideration  is  suffi- 
cient to  prevent  a  trust  from  resulting  to  the  grantor.(6) 

46.  Where  a  deed  expressed  the  consideration  of  five  shillings  and  of 
natural  love  and  affection  ;  held,  this  would  be  sufficient  to  prevent  any 
resulting  trust  in  favor  of  the  grantor.  But  it  is  not  conclusive,  even 
with  the  addition  of  the  clause,  "  and  other  valuable  considerations." 
Thus,  if  the  recitals  of  the  deed  show  that  it  is  made  for  the  payment 
of  creditors,  and  that  unless  they  are  paid  the  deed  shall  be  void;  a 
trust  results  to  the  grantor,  for  the  surplus  over  such  payment.(7) 

47.  There  can  be  no  resulting  or  implied  trust  between  a  lessor  and 
lessee,  because  the  covenants  in  the  lease  are  a  sufficient  legal  consider- 


(1)  2  Story,  457. 

(2)  Perry  v.  Phelips,  4  Yes.  lOS  ;  Perry  v. 
Phelips,  17,  173. 

(3)  2  Story,  457,  and  n. 

(4)  Phillips  V.  Cramond,  2  Wash.  C.  441  ; 
2  Story,  457,  and  n. 


(5)  Norfolk  V.  Browne,  1  Ab.  Eq.  381 ; 
Prec.  in  Cha.  80  ;  2  Story  on  Eq  440-1 ;  Ba- 
con on  Uses,  317. 

(6)  Ha<,Hhorp  v.  Hook,  1  Gill.  &  J.  296-7; 
2  Story,  442. 

(7)  1  Gill.  &  J.  296-7. 


(a)  It  has  been  held  in  Maine,  tliat  where  an  absolute  conveyance  purports  to  have  been 
made  for  a  good  or  valuable  consideration  paid  by  the  grantee,  the  presumption  of  law  is, 
that  the  estate  is  held  Ijy  him  for  his  own  u'se,  and  this  presumption  cannot  be  rebutted  by 
parol  evidence.     Phill)rook  v.  Delano,  29  Maine,  410. 

Mere  want  of  consideration  in  a  deed  will  not  of  itself  alone  raise  a  resulting  trust.     lb. 

To  a  bill,  charging;  tliat  a  person  since  deceased  had  made  a  conveyance  to  tiie  father  of 
his  wife,  of  a  certain  described  estate,  without  any  consideration,  but  for  tlie  express  pur- 
pose of  keeping  the  property  safe  for  the  use  of  his  wife  and  children,  and  praying  for  a  re- 
conveyance of  the  land  to  the  cliildren,  but  containing  no  alleg^ation  of  any  declaration  of 
trust  in  the  conveyance,  or  that  any  written  declaration  of  trust  had  been  made  ;  there  was 
a  demurrer  on  the  ground  that  parol  proof  was  inadmi.ssible  in  such  case  to  establish  a 
trust      Tlie  demurrer  was  sustained.     lb. 

It  seems,  it  would  not  lie  necessary  that  .such  a  bill  should  set  forth  the  manner  in  which 
the  alleged  trust  was  to  be  established  by  proof,  and  that  tlie  demurrer  might  have  been 
overruled,  to  admit  any  written  evidence  or  declaration  of  trust  to  be  introduced,     lb. 


CHAP.  XXIII.]  RESULTING  TRDST3.  32  j 

ation.     But  there  may  be  an  implied  trust  between  the  assignor  and 
assignee  of  a  lease.(l) 

48.  It  is  said,  that,  in  case  of  voluntary  settlements  and  wills,  if  there 
is  no  declaration  of  the  trust  of  a  term,  it  results  to  the  settler;  other- 
wise, where  it  is  a  settlement  for  valuable  consideration,  and  in  the  na- 
ture of  a  contract  for  the  benefit  of  a  wife  or  cliiidren.(2)L_ 

49.  Where  land  is  conveyed  or  devised  to  a  trustee  upon  certain 
specified  trusts,  the  residue  of  the  estate,  which  remains  after  those 
trusts  are  satisfied,  results  to  the  grantor  or  his  heirs.(3) 

60.  Devise  to  a  trustee  for  ninety-nine  years,  in  trust  for  the  pay- 
ment of  certain  debts,  and  an  annual  allowance  to  the  sons  of  the  tes- 
tator, remainder  to  his  eldest  son  for  life,  remainder  to  his  first  and 
other  sons  in  tail,  and  a  like  remainder  to  the  second  son.  The  speci- 
fied debts  having  been  paid,  other  creditors  of  the  sons  bring  their  bill 
in  equity,  praying  that  the  term  may  be  attendant  on  the  inheritance 
and  held  liable  for  their  claims.  Held,  inasmuch  as  the  trust  of  the 
term  was  satisfied,  the  remainder  of  it  resulted  to  the  first  son  of  the 
testator.(4) 

51.  Devise  of  freehold,  leasehold  and  copyhold  to  A,  B  and  C,  tenen- 
dum, the  freehold  and  leasehold  in  trust  for  A.  Held,  the  copyhold 
descended  to  heirs.(5) 

52.  Although  the  same  technical  words  are  not  required  to  create 
an  estate  by  will  as  by  deed,  yet,  when  created,  the  same  circumstances 
will  raise  a  resulting  trust  to  the  heirs  of  the  devisor  in  the  former  case 
and  to  the  grantor  himself  in  the  latter.(6) 

53.  There  are  several  other  distinct  cases,  in  which  a  trust  results  by 
operation  of  law.  Thus,  where  land  is  conveyed  for  a  consideration, 
to  be  determined  by  the  price  for  which  the  grantee  shall  sell  it  •  a 
trust  results  to  the  grantor  till  such  sale  is  made,  in  the  same  way  as  if 
the  grantee  had  been  expressly  empowered  to  sell  the  land  for  the 
grantor's  benefit.(7) 

54.  Where  the  legal  estate  in  lands  is  conveyed,  and  trusts  are  an- 
nexed to  it  which  are  either  illegal  or  contrarj^  to  public  policy,  the  lat- 
ter are  void  ;  and  either  the  donee  will  take  the  absolute  estate,  or  the 
whole  trust  result  to  the  donor,  as  one  or  the  other  construction  will 
best  suppress  the  illegal  purpose.  Thus,  where  slaves  were  conveyed, 
in  trust  to  permit  them  to  live  together,  and  be  industriously  employed, 
and  the  donee  to  control  their  morals,  &c. ;  held,  inasmuch  as  emanci- 
pation or  a  qualified  slavery  is  contrary  to  public  policy,  and  as  the 
deed  showed  that  the  slaves  were  not  to  be  the  properly  of  the  donee,  a 
trust  resulted  to  the  donor.(8)  Upon  a  similar  principle,  it  has  been 
seen,  (sec.  34,)  no  trust  will  result  to  an  alien. 

55.  So,  where  the  trusts  or  objects  of  a  limitation  fail  or  are 
exhausted,  a  trust  results.(9) 

56.  Where  one  conveys  land  to  trustees  for  such  uses  anil  purposes 
as  he  shall  appoint,  and  fails  to  make  an  appointment,  a  trust  results 
to  him  and  his  heirs.(lO) 

(1)  PiJkington  v.  Bayley,  7  Bro.  Pari.  Ca.  ]     (5)  Stubbs  v.  Sargon,  2  Keen,  255. 


383  ;   Ilutchins  v.  Lee,  1  Atk.  447. 

(2)  Brown  V.  Jones,  1  Atk.  191  ;  1  Cruise, 
314. 

(3)  2  Story,  442. 

(4)  1  Cruise,  314. 

Vol,  I.  21 


(6)  Stevens  v.  Ely,  1  Dev.  Eq.  493. 

(7)  Prevost  v.  Gratz,  1  Pet.  3G7. 

(8)  Stevens  v.  Ely,  1  Dcv.  Eq.  493. 

(9)  2  Story,  443. 

(10)  FiUg.  223. 


322 


TRUSTS.     IMPLIED  AND 


[CHAP.  XXIIL 


67.  AVhere  a  trustee  renews  a  lease  in  bis  own  name,  he  shall  hold 
it  for  the  benefit  of  the  cestui  que  trust  It  is  said,  if  a  mortgagee, 
executor,  trustee  or  tenant  for  life,  having  a  limited  interest,  gets  an 
advantage  by  being  in  possession  or  behind  the  back  of  the  party 
interested  in  the  subject,  or  bj  some  contrivance  in  fraud  ;  he  shall 
not  hold  the  same  for  his  own  benefit,  but  hold  it  in  trust.(L) 

58.  And  this  rule  applies,  although  the  trustee  requested  a  renewal 
for  the  cestui^  before  obtaining  it  for  himself ;  more  especially  where 
the  cestui  is  an  infant.  The  court  will,  in  such  case,  order  an  assign- 
ment of  the  lease  to  the  infant ;  an  account  of  the  profits  since  the 
renewal ;  and  that  the  trustee  be  indemnified  from  the  covenants  in 
the  lease.(2) 

59.  A  assigns  to  B  a  lease  of  land  as  securitj^  Afterwards,  for  a 
consideration  expressed  but  not  actually  paid,  A  agrees  to  give  up 
one-half  of  the  land  to  B.  B  takes  possession,  surrenders  the  old 
lease,  and  takes  a  new  and  extended  one.  Held,  the  agreement  to 
give  up  the  land  appeared  on  the  face  of  it  to  be  procured  by  undue 
influence,  and  by  taking  advantage  of  the  former  assignment;  that 
the  maxim,  "  once  a  mortgage  always  a  mortgage,"  was  applicable  ; 
and  that  A  should  have  the  benefit  of  the  new  lease,  on  payment  of 
the  amount  due  B.(8) 

60.  So  where  one  partner,  negotiating  for  a  lease  for  the  firm,  re- 
ceived a  large  sum  of  money  from  the  lessor  for  himself;  held,  he 
took  it  in  trust  for  the  firm.(4) 

61.  Upon  the  same  principle,  a  purchaser  with  notice,  from  one 
having  only  a  limited  interest  in  the  property,  becomes  a  trustee  for 
those  beneficially  entitled. 

62.  Thus,  where  A  had  a  temporary  right  to  certain  slaves,  the 
ultimate  property  being  in  minor  children,  and  B,  having  notice  of 
the  title,  purchased  them  from  A  ;  held,  B  should  be  a  trustee  for 
the  children.     Otherwise,  with  a  purchaser  from  B  without  notice.(5) 

63.  If  two  parties  are  interested  together,  by  mutual  agreement  in 
writing,  for  the  purchase  of  land,  and  a  purchase  is  made  accordingly; 
one  cannot  appropriate  the  benefit  exclusively  to  himselC,  but  any 
private  advantage  makes  him  a  trustee  for  the  other.  AVhether  the 
same  rule  applies,  where  the  agreement  is  parol,  qucere.{6){a) 

64.  Where  a  conveyance  of  land  has  been  obtained  by  fraud,  the 
grantee  is  in  equity  a  trustee  for  the  grantor.  So,  any  party,  in 
possession  of  land  by  fraud,  is  in  equity  a  trustee  for  the  person 
beneficially  interested. (7) 


(1)  Holeridg-e  r.  Gillespie,  2  John.  Cba. 
33-4. 

(2)  Keach  v.  Sandford,  Sel.  Cas.  in  Ch3\  6 ; 
Blewett?;.  Millett,  7  Bro.  I'arl.  367;  Killick 
V.  Fleaney,  4  Ero.  IGl;  James  v.  Dean,  11 
Ves.  383 ;  Fitzjfiljbon  v.  Scaiilan,  1  Dow. 
261;  Taster  v.  Marriott.  Arab.  668;  Owen 
V.  Williams,  lb.  784;  5  Bro.  Pari.  10. 


(3)  Holeridge  v.  Gillespie,  2  John.  flha.  30. 

(4)  Fawcett  v.  Wliitehouse,  1  Russ.  &  Uj. 
181. 

(5)  "Wamburzee   v.   Kennedy,   4    Dessuus. 
474;  Phyfe  v.  Wardell,  5  Pai^e,  268. 

(6)  Flagg  V.  Mann,  2  Sumn.  487. 

(7)  2  Atk.  150 ;  Brown  v.  Lynch,  1  Paige, 
147  ;  Perkins  v.  Hays,  1  Cooke.  166. 


(a)  One  of  several  heirs  entered  upon  the  land,  retained  possession,  received  the  rents, 
built  upon  it,  and  took  out  a  patent  for  himself  and  in  trust  for  the  others,  and  the  land  was 
taxed  in  their  names.     Held,  no  disseizin  of  the  other  heirs.     Hart  v.  Gregg,  10  Watts,  189. 


CnAP.  XXIir.]  RESULTING  TRUSTS.  323 

65.  An  exception  to  the  rule  of  resulting  trusts,  in  favor  of  the 
party  who  pays  the  purchase-money  of  an  estate,  is  where  a  father 
buys  land,  and  takes  a  conveyance  to  his  minor  cltihlia)  Such  trans- 
action, founded  upon  the  consideration  of  blood  and  affection,  is  held 
an  advancement  to  the  latter,  made  in  fuKilinent  of  the  parental  obliga- 
tion of  support^  In  ordinary  cases,  from  the  paymerrt,-t:)f  the  price  the 
law  presumes  an  implied  trust  in  iavor  of  the  real  purchaser,  which, 
however,  mav  be  rebutted  by  parol  evidence.  But,  in  this  case,  the 
])resamption  is  the  other  way,  subject  to  be  controlled  by  the  same 
kind  of  evidence.  And  though,  during  the  child's  infancy,  the  father 
takes  the  profits,  the  law  will  intend  that  he  does  this  as  guardian  ;  or, 
if  there  be  a  power  of  attorney,  as  agent  for  the  son.  So,  if  the  father 
occupy  the  land  during  his  life,  lay  out  money  in  improvements,  devise 
the  estate  to  other  parties,  and  by  his  will  provide  otherwise  for  the 
son  ;  the  latter  shall  still  hold  the  land.  So,  although  the  son  gave 
receipts  to  tenants  for  the  use  of  the  father.  An  infant  cannot  be  pre- 
sumed to  have  been  intended  for  a  trustee.(l)  In  an  early  case,  how- 
ever, the  extreme  youth  of  the  child  Avas  regarded  as  a  reason  for  not 
considering  the  purchase  as  an  advancement  (2) 

6H.  Where  the  estate  purchased  by  a  father  is  conveyed  to  the 
minor  son  and  a  stranger  jointly,  the  law  still  construes  it  an  advance- 
ment for  the  child,  more  especially  if  the  other  grantee  disclaims.  In 
such  case,  it  is  said,  if  the  child  should  die  before  the  other  grantee, 
the  latter  would  then  be  a  trustee  for  the  father,  and  bound  to  re- 
convey  to  him.  And  this  would  seem  to  be  the  object  of  joining  him 
in  the  deed,  as  well  as  the  affording  protection  to  the  infant.(o) 

60  a.  The  grantee  of  a  farm,  having  mortgaged  it  for  the  price,  lived 
upon  it  38  years,  till  his  death.  He  did  no  labor  upon  the  farm,  but 
his  four  youngest  sons  carried  it  on,  and  paid  for  it  b}'  their  labor. 
Held,  a  trust  resulted  in  their  f;ivor.(4) 

66  6.  Where  a  father  purchased  tract  A  in  his  own  name,  with  the 
money  of  his  son,  and  then  agreed  with  him  that  the  amount  thus  paid 
should  go  into  tract  B,  the  possession  of  which  was  delivered  to  the 
son  by  the  father  under  a  contract  for  a  sale,  paying  a  yearly  sum  to 
the  father  for  life;  and  the  son  gave  notice  to  his  tenant  of  tract  A, 
who  then  paid  rent  to  the  father  ;  and  the  assessments  were  respective! \'' 
charged,  and  the  son  continued  in  possession  of  tract  B:  held,  there 
was  evidence  for  a  jury  of  a  parol  sale,  Avhich  was  not,  within  the  statute 
of  frauds.(5) 

67.  A  father  agreed  with  his  minor  son  to  give  him  his  own  earn- 
ings, but  the  father  occasionally  received  them,  and,  being  then  solvent, 
purchased  lands  of  equal  value,  himself  paying  the  price,  but  taking 

(1)  Parish  V.  Rhodes,  Wright,  339;  Astreon  |  Finch  R..  3-11  ;  Mumma  v.  Munima,  2  Vern. 
V.  Flaii.igan,  3  Eiiw.  279  ;  Phillips  v.  Gress,  j  19;  Dennison  v.  Goehring;.  7  Jiarr,  175. 
10  Walts,  153;  Scawin  v.  Seawin,  1  Y.  &  ;  (2)  Binioii  v.  Stone,  Nels.  Cha.  R.  6S; 
Coll.  Cha.  65  ;  Skeats  v  Skeats,  2  Y.  &  Coll.  i  .lackson  v.  Matsdorf,  1 1  .John.  96 ;  Sampson 
(Jiia.  9;  Sidmouth  v.  Sidmoulli,  2  Beav.  447  ;  :  v.  Sampson,  4  Ser.  &  R.  333. 
Plunkett  V.  Lewis,  3  Hare,  316;  Grey  t'.  j  (3)  Lamplugh  y.  Lamplugh,  1  P.  Wms.  111. 
Gre}',  1  Chan.  Cas.  296;  Ford  v.  Katliarine,  ,      (4)  Harder  v.  Harder,  2  Sandf.  Ch.  17. 

J      (5)  Lee  v.  Lee,  9  Barr,  169. 


(a)  So  where  one  takes  a  conveyance  in  trust  for  his  children,  the  trust  will  be  enforced, 
thougli  ho  hioaself  paid  the  price.     Dennison  v.  Goehring,  7  Barr,  175. 


324 


TRUSTS.     IMPLIED  AND 


[CHAP.  XXIII. 


the  deed  in  the  son's  name.  The  father  occupied  without  rendering 
any  account,  and  afterwards  became  insolvent.  Held,  the  land  was 
not  liable  to  the  father's  creditors,  the  circumstances  not  justifying  any 
presumption  of  fraud,  inasmuch  as  the  receipt  of  the  son's  earnings 
furnished  an  equitable  consideration  for  the  conveyance  to  him.(l) 

68.  But  where  a  father,  being  indebted,  buys  and  pa^s  for  an  estate, 
and  the  conveyance  is  made  to  his  children,  and,  upon  a  bill  in  equity 
by  creditors  of  the  former,  the  father  and  children  deny  any  advance- 
ment; this,  with  other  slight  circumstantial  evidence,  will  be  sufficient 
to  charge  the  land  with  the  father's  debts.(2) 

69.  Parol  evidence  is  admissible,  in  such  case,  to  rebut  the  presump- 
tion of  a  resulting  trust. 

69  a.  Where  a  father  purchases  land,  and,  for  the  purpose  of  defraud- 
ing his  creditors,  has  the.conveyance  made  to  a  son;  although  no  trust 
thereupon  results  in  favor  of  the  father,  3'et,  the  fact  of  his  having  paid 
the  purchase-money,  constitutes  a  good  consideration  for  a  subsequent 
agreement  between  the  grantee  and  the  father  and  another  son,  for  a 
division  of  the  land  between  the  two  sons;  and,  where  such  division  is 
made  and  acted  upon  for  several  years,  each  son  occupying  his  share, 
and  making  expenditures  in  consequence  of  the  division,  and  upon  the 
faith  of  it,  the  grantee  will  not  be  allowed  to  repudiate  the  agreement 
and  claim  the  whole  land. (3) 

70.  The  same  principle  has  been  applied  to  a  purchase  made  by  a 
grandfather  in  the  name  of  his  grandson — the  father  being  dead ;  and 
is  also  applicable,  it  seems,  to  a  purchase  made  in  the  name  of  a  natural 
child,  if  described  as  the  child  of  the  purchaser ;  because  there  is  an 
obligation  on  the  parent  to  provide  for  such  children.  So,  also,  to  the 
case  of  an  adopkd  child,  or  a  nephew. (4) 

71.  After  the  emancipation  of  a  child  from  parental  custody  and 
support — as  b}'  his  coming  of  age,  marriage,  advancement,  &c. — a  pur- 
chase by  the  father  in  his  name  will  not,  in  general,  be  deemed  an  ad- 
vancement, but  will  create  a  trust  for  the  father.  But  the  emancipation 
or. advancement  must  have  been  complete,  and  not  merely  partial.  A 
child  having  only  a  reversion  expectant  on  a  life  estate,  will  be  con- 
sidered as  unadvanced;  and,  even  if  he  have  been  advanced,  this  will 
make  no  difference,  it' the  father  consider  him  as  unadvanced.  A  pur- 
chase in  the  name  of  a  child  of  full  age,  however,  is  to  be  considered  as 
of  equivocal  effect,  to  be  determined  by  the  actual  occupanc}^  of  the 
land  during  the  father's  life.  If  the  father  occup}-,  it  will  be  considered 
as  a  trust  tt^r  him  ;  if  the  son,  as  an  advtincement.(5) 

72.  The  princij)le  above  statetl,  making  a  transaction  which  would 
ordinarily  create  an  implied  trust,  as  between  parent  and  child  an  ad- 
vancement^ is  applicable,  not  only  where  payment  of  the  purchase- 
money  by  the  former  is  the  ground  of  the  trust,  but  also  where  he 
conveys  property  to  trustees,  declaring  the  trusts  only  in  part. 

73.  A  father,  by  deed,  reciting  his  wish  to  provide  for  himself  during 


(1)  Jenney  ti.  Alden,  12  Mass.  375. 

(2)  Doyle  V.  Sli-epir,  1  Diina,  531. 

(3)  Proseus  v.  Mcliilyre,  5  Biirb.  424. 

(4)  Ebrand  v.  Dhmcit,  2  Cha.  Ca.  26; 
Lloyd  V.  Read,  1  P.  Wins.  608 ;  Fearne's 
Opin.  327;  Atjlreen  v.  Flnn.israii,  3  Edw. 
279;  Currant  v.  Jago,  1  Coll.  Cl-a.  261.    See 


McDaniel  v.  Zelf,  8  Humph.  58  ;  Wait  v.  Day, 
4  Deriio,  439. 

(5)  Pinch  R.  341;  Elliott  v.  Elliott,  2  Cha. 
Ca.  231;  Pole  v.  Pole,  I  Ves.  76;  Su":.  on 
Ven.  2,  166;  Gilbert  Lex  Prseto.  271;  I 
Cruise,  320. 


CHAP.  XXITI.]  RESULTING  TRUSTS.  325 

his  life,  and  bis  family  afterwards,  conveys  bis  property  to  bis  son  upon 
tbe  trusts  tbereafter  mcnticjned.  lie  tben  dechires  trusts  of  a  part  of 
the  property  for  bis  wife,  daugbter  and  niece,  Tbe  son  maintained 
tbe  father  many  years.  Held,  tbere  was  no  resulting  trust  for  tbe 
fatber.(l)  '      . 

74.  Where  a  father  purchases  land,  and  takes  the  conveyance  to 
himself  and  a  son  jointly,  altbough  it  was  formerly  held  tbat  the  law- 
would  construe  the  transaction  as  an  advancement  to  tbe  son,  it  seems 
to  be  now  settled,  tbat  they  shall  take  together,  each  a  moiety  of  tbe 
estate;  and,  upon  tbe  fatber's  death,  his  sbare  will  be  held  liable  in  a 
Court  of  Cbancer}'  to  bis  creditors,  more  especially  where  tbe  father 
occupied  the  estate  during  his  life,  and  it  constituted  the  only  assets  for 
payment  of  his  debts.  In  making  this  decision,  it  was  said  by  the 
Court,  tbat  altbougb  '•'■stare  decisis'''  sbould  be  their  governing  maxim, 
yet  the  doctrine  of  advancement  had  been  already  farenougb  extended, 
and  ougbt  not  to  be  adopted  in  this  ease;  where  the  form  of  convey- 
ance showed  a  clear  intention,  on  tbe  part  of  tbe  father,  to  be  a  joint 
owner  of  tbe  estate.  A  fortiori  tbe  same  j)rinciple  would  apply,  in  case 
of  a  limitation  to  the  fatber  for  life,  remainder  to  tbe  son  in  fee.(2) 

75.  Tbe  principle  of  the  above-mentioned  case  has  been  questioned 
by  very  high  authority ;  unless  the  case  proceeded  on  tbe  ground  of 
fraud.('8) 

75  a.  Where  a  deed  was  taken  in  the  name  of  a  son,  the  purchase- 
money  paid  by  him  and  bis  fatber,  and  tbe  pro|)ortion  which  each  paid 
was  uncertain,  the  court  refused  to  establish  a  resulting  trust  in  favor 
of  the  fatber.(4) 

76.  It  seems,  parol  evidence  is  not  admissible  to  prove  a  trust  for 
the  father.  The  trust  ought  to  appear  upon  very  plain  and  coherent 
and  binding  evidence.(5) 

77.  No  subsequent  declaration  by  the  Aitber  will  be  sufficient  to 
raise  a  trust,  where  it  is  clear  tbat  an  advancement  was  originally  in- 
tended.    Thus,  a  devise  by  him  will  be  of  no  effect.(H) 

78.  But,  it  seems,  such  devise  to  a  third  person,  accompanied  by  a 
devise  of  other  lands  to  the  son,  will  put  the  latter  to  his  election. (7) 

79.  Where  the  conveyance  is  proved  to  have  been  made  by  the 
father  for  a  special  purpose;  as,  for  instance,  to  sever  a  joint  tenancy  ; 
a  trust  will  result  to  him. (8) 

80.  Some  distinction,  in  relation  to  this  subject,  has  been  suggested 
between  sons  and  daughters.  But  it  is  shrewdly  remarked,  tbat,  while 
daughters  .are  less  frequently  advanced,  they  are  also  much  less  suit- 
able for  trustees,  than  sons.(9) 

81.  It  is  said,  tbe  presumption  of  advancement  to  a  child  ought  not 
to  be  frittered  away  by  nice  refinements.(lO)     In  a  k-ading  case  upon 

(1)  Cook  D.  Ilntcliinson,  Keen,  42.  I      (6)  Woodman    v.    Morrell,  2    Free.  32;  * 

(2)  Scroop  V.  Scroop,  1  Clia.  Ca.  27  ;  Stile-   Murama  v.  Mumma,  2  Vern.  19. 
man  v.  Aslidown,  2  Atk.  477.  (7)  2  Sug.  on  Ven.  169. 

(3)  2  Sug.  on  Ven.  170.  (8)  Baj'lis  v.  Newton,  2    Yur.  28;  Jackson 

(4)  Baker  v.  Yining,  30  Maine,  121.  v.  Matsdorf,  11  .John.  96. 

(5)  2  Sug.  on  Yen.  1G6-8.  (9)  Sug.  on  Ven.  172. 

I      (10)  2  Story,  446. 

*  But  in  this  case,  the  bill  in  equity  of  the  father,  claiming  the  land,  was  itself  held  to 
disprove  a  trust. 


326 


TRUSTS.     IMPLIED  AND 


[GHAP.  xxiir. 


this  subject,(l)  Ch,  J.  Eyre  remarks,  that  the  relation  of  a  child  rebuts 
a  resulting  trust,  as  a  circumstance  of  evidence  ;  but  that  it  would  be  a 
more  simple  view  of  the  matter,  to  regard  a  child  as  a  purchaser  for 
valuable  consideration,  upon  the  same  principle  by  which  the  considera- 
tion of  natural  love  and  affection  raised  a  use  at  common  law.  This 
construction  would  shut  out  evidence  on  the  other  side,  the  introduc- 
tion of  which  is  "  getting  into  a  very  wide  sea."  Thus,  where  a  son  is 
provided  for,  the  resulting  trust  is  said  not  to  be  rebutted,  though  a 
father  is  the  only  judge  what  shall  be  a  provision.  So,  the  conveyance 
is  termed  a  prima  facie  advancement.  Hence,  the  principle  has  been 
subjected  to  great  uncertainty  and  variation. 

82.  A  wife  cannot  be  trustee  for  her  husband.  Hence,  a  purchase 
in  the  names  of  the  husband,  the  wife,  and  a  third  person,  A,  for  their 
lives  and  the  life  of  the  longest  liver  of  them,  gives  to  the  wife  an 
estate  for  life,  and  after  her  death  an  estate  to  A,  in  trust  for  the  exe- 
cutors of  the  husband.  So,  where  a  man  purchases  an  estate  in  the 
names  of  himself,  his  wife  and  daughter,  he  cannot  by  a  mortgage 
bind  the  land  after  his  own  death,  and  during  the  lives  of  the  wife 
and  daughter.(2) 

83.  It  is  suggested,  however,  that  a  purchase  in  the  name  of  a  wife 
may  be  fraudulent  against  creditors.  But,  it  seems,  the  St.  of  13  Eliz. 
is  not  applicable  to  such  case,  because  the  husband  might  give  her  the 
money  which  is  paid  for  the  land,  and  therefore  creditors  are  not 
harmed.     It  seems  actual  fraud  is  necessary  to  avoid  the  transaction. (3) 

84.  If  a  husband  purchase  land  in  his  own  name  with  the  money  of 
the  wife,  a  trust  results  to  her,  as  against  his  heirs  at  law  or  mere  volun- 
teers, but  not  creditors;  and  a  purchaser  from  the  husband  will  be 
charged  therewith.(4)  On  the  other  hand,  in  case  of  a  deed  made  to 
the  wife,  the  husband  paying  or  securing  the  price,  even  with  the  ex- 
pectation that  it  will  be  ultimately  paid  by  her;  although  the  law  pre- 
sumes an  advancement,  yet,  if  done  to  defraud  his  creditors,  a  trust 
results  to  him,  and  the  land  is  liable  for  his  debts.(5) 

84  a.  Where  a  wife,  acting  under  a  power  of  attorney  from  her  hus- 
band, authorizing  her,  among  other  things,  to  receive  and  collect  all 
money  and  other  property  due  to  him,  for  her  own  use,  purchased  land 
with  money  so  received,  and  took  a  conveyance  thereof  to  herself;  and, 
after  the  death  of  the  husband,  a  bill  in  equity,  alleging  these  facts,  and 
also  that  the  husband  never  intended  that  such  purchase  should  be  a 
provision  for  the  wife,  or  her  separate  property,  was  brought  by  the 
heirs  at  law  of  the  husband  against  the  widow,  for  a  conveyance  of  the 
land  so  purchased  by  her;  it  was  held,  on  demurrer  to  the  bill,  that, 
upon  the  allegations  therein  contained,  there  was  no  resulting  trust  in 
favor  of  the  husband  or  his  heirs.(6) 

84  b.  Certain  land  was  bought  for  a  wife,  and  the  price  paid  partly 
from  the  proceeds  of  her  own  real  estate,  to  the  sale  of  which  she  as- 
sented only  on  condition  the  proceeds  should  be  thus  invested,  and 
partly  by  the  husband.     Held,  the  land  was  not  liable  to  sale  on  exe- 


(1)  Dyer  v.  Dyer,  2  Coxe,  92. 

(2)  Kingdome  v.  Bridges,  2  Vern.  67 ; 
Back  V.  Andrews,  Prec.  in  Ulia.  1 ;  Back  v. 
Andrews,  2  Vera.  120;  Jenks  v.  Alexander, 
11  Paige,  619. 

(3)  Sug.  on  Ven.  171-2;   11  Paige,  619. 


(4)  Methodist.  &c.  v.  Jacques?,  1  John.  Cha. 
450 ;   Brooks  v.  Dent,  1    Md.  Ch.  523. 

(5)  Guthrie  W.Gardner,    19    Wend.    414; 
Hopkins  v.  Carey,  23  Miss.  54. 

(6j  Whitten  v.  Whitten,  3  Cush.  191. 


CHAP.  XXIV.] 


RESULTING  TRUSTS. 


327 


cution  against  him,  nor  were  the  execution  purcliasers  entitled  in  equity 
to  a  conveyance.(l) 

84  c.  Where  real  estate  was  purchased  and  jxaid  fur  in  part  with  the 
money  or  funds  of  the  husband,  and,  with  his  assent,  the  conveyance 
taken  to  a  trustee,  who  simultaneously  gave  a  mortgage  on  the  estate 
for  the  I'esiduc  of  the  purchase  money  ;  and  also,  with-t.he  husband's 
assent,  executed  a  declaration  of  trust  that  the  premises  were  held  to 
the  sole  and  separate  use  of  the  wife,  subject  to  the  mortgage;  held, 
the  rights  of  creditors  not  being  in  question,  the  declaration  of  trust 
was  valid  and  binding  upon  the  husband,  and  he  had  no  interest  in 
such  estate.(2) 

8-1  (/.  If  a  husband  sells  his  wife's  land  for  his  own  benefit,  under  an 
agreement  with  her  to  purchase  other  land  for  her  of  equal  value  with 
that  sold,  and  he  afterwards,  conformably  to  the  agreement,  makes  such 
purchase,  and  causes  the  vendor  to  execute  the  conveyance  to  his  wife; 
the  lands  so  conveyed  will  not  be  subject  in  equity  to  the  husband's 
debts,  contracted  subsequently  to  his  payment  for  the  land,  but  before 
the  execution  of  the  eonveyance.(o) 

85.  In  case  of  a  partition  between  two  femes  covert^  tenants  in  com- 
mon, and  mutual  releases  made  to  their  respective  husbands;  each  holds 
in  trust  for  his  wife.  But,  if  only  a  pecuniary  consideration  is  recited, 
a  purchaser  without  notice  will  gain  the  absolute  title.(-i) 


CHAPTER   XXIY. 

TRUSTS.     NATURE,  ETC.,  OP  A  TRUST  ESTATE. 


1.  Analogous  to  legal  estates. 

2.  Alienation  of. 

3.  Curtesy. 
9.  Dower. 

16.  Subject  to  debts. 

27.  Mer<2rer. 


29.   Actions  by  and  against  the  cestui,  &e. 
36.  Conveyance  of  the  legal  estate,  when 

presumed. 
39.  Trust,  how  affected  by  lapse  of  time, 

and  tlie  statute  of  limitations. 


1.  A  TRUST  being  a  use  not  executed  by  the  statute  of  uses,  it  was 
held,  in  some  early  cases,  that  trust  estates  were  to  be  regarded  as 
identical  in  their  incidents  with  uses  prior  to  this  statute.  But  a  dif- 
ferent doctrine  is  now  settled.  Although  a  cestui  que  trust  has  no  legal 
estate,  yet,  in  the  consideration  of  a  court  of  equity,  where  only,  for  the 
most  part,  his  title  is  recognized, (a)  he  is  the  real  owner  of  the  land. 
He  has  an  equitable  seizin  of  it,  corre-^ponding  in  all  respects  with  the 
legal  seizin  that  is  acknowledged  in  courts  of  law.  In  this  respect,  as 
in  many  others,  equity  follows  the  law  ;  and  it  is  said,  if  there  were  not 
the  same  rules  of  property  in  all  courts,  all  things  would  be,  as  it  were. 


(1)  Williams  v.  Williams,  6  Ired.  Equ.  20. 

(2)  Martin  v.  Martin,  1  Comst.  473. 


(3)  Barnett  v.  Goings,  8  Blackf.  2S4. 

(4)  Weeks  v.  Hoas,  3  Watts  &  S.  520. 


(a)  Judge  Story  (on  Equity,  2,  228)   places  trusts  under  the  exclusive  jurisdiction  of 

equity. 


328 


TRUSTS.     NATURE,  ETC.,  OF 


[CHAP.  XXIV. 


at  sea,  and  under  the  greatest  uncertainty. (1)  All  the  canons  of  descent 
apply  to  trusts.(a)  They  are  alieDable(6)  and  devisable.  So  they  are 
subject  to  the  same  classification — into  inheritances,  freeholds,  and 
estates  less  than  freehold ;  estates  in  possession,  remainder  and  rever- 
sion ;  and  estates  several  and  undivided — with  legal  estates.  The  same 
rule  also  applies  to  them  as  to  entailments  and  perpetuities.(2)  It  has 
been  said,  however,  that  though  limitations  of  trusts  cannot  be  carried 
farther,  in  the  way  of  perpetuity,  than  legal  interests ;  yet,  it  seems, 
they  may  be  more  liberally  expounded.{S) 

2.  Any  legal  conveyance  or  assurance  by  a  cestui  que  trust  shall  have 
the  same  effect  and  operation  upon  the  trust,  as  it  should  h;ive  had 
upon  the  estate  in  law,  in  case  the  trustees  had  executed  their  trust. 
But,  by  a  clause  in  the  statute  of  frauds,  universally  adopted  in  the 
United  States,  all  grants  and  assignments  of  trusts  must  be  in  writing, 
and  signed  by  the  party.  And,  it  seems,  the  effect  of  an  assign- 
ment by  the  cestui  que  trust  is  not  to  change  the  estate  of  the  trustee, 
but  only  to  pass  to  the  assignee  precisely  the  cestuVs  own  interest  in 
the  land. (4)(c) 

3.  A  trust  estate  is  subject  to  curtesy.{p)  Thus,  a  man  devised  lands 
to  trustees  in  I'ee,  in  trust  to  pay  his  debts,  and  convey  the  surplus  to 
his  daughters,  A  and  B,  equally.  A  brings  a  bill  for  partition.  C, 
the  husband  of  B,  being  a  defendant,  alleges  in  his  answer,  that  he 
married  B  under  the  belief  of  her  owning  the  legal  estate;  that  she 
was  in  receipt  of  the  profits  at  the  time  of  marriage,  and  the  trust  was 

(3)  Brailsford  v.  Heyward,  2  Dess.  293  ; 
Walk.  Intro.  340. 

(4)  2  Cha.  Cas.  78;  Elliott  v.  Armstrong:, 
2  Blackf.  198;  Blake  v.  Foster,  8  T.  R.  494. 

(5)  1  Vir.  Rev.  C.  159;  Alab.  L.  247; 
Clay,  169-70;  Robison  v.  CodmaD,  1  Sutnn. 
128;  1  Story's  Eq.  74. 


(1)  Nourse  v.  Finch,  1  Ves.  357  ;  Watts  v. 
Ball,  1  P.  AVms.  108;  Shrepnel  v.  Vernon.  2 
Bro.  271  ;  Burgess  v.  Wlieate,  1  Eden,  206  ; 
2  Story,  236-7  ;  Chaplin  v.  Chaplin,  3  P. 
Wms.  234;  Cudworth  v.  Hall,  3  Dess.  Cha. 
260;  Cashborne  v.  Inglisli,  2  Abr.  Eq.  728; 
DufiFy  V.  Calvert,  6  Gill,  487_ 

(2)  Co.  Lit.  290  b,  a. 


(a)  Where  real  estate  was  placed  in  the  hands  of  a  trustee,  to  bo  conveved  to  the  ap- 
pointee of  A,  or.  on  failure  of  an  appointment,  to  her  heirs,  and  she  died  withdut  making 
one;  held,  as  she  had  no  legal  title,  the  property  could  not  be  sold,  in  the  ordinar_v  course 
of  administration,  under  a  license,  for  payment  of  her  debts.  Coverdale  v.  Aldrich,  19  Pick. 
391.  An  heir  of  A  having  made  a  general  assignment,  for  his  creditors,  of  all  his  lands, 
tenements,  &c.,  goods,  &c.,  and  all  his  right,  title  and  interest  in  and  to  the  same;  held,  his 
share  in  the  above  real  estate  passed  thereby.     lb. 

(6)  Where  a  cestui  que  trust,  by  a  sealed  irjstrument,  "sold,  assigned  and  transferred"  to 
A  his  "one-fourth  interest  in  a  house  and  lot,"  being  the  house  and  lot  in  which  he  had  an 
equitable  interest;  held,  this  was  an  executed  contract,  and  conveyed  all  the  interest  of  the 
grantor.     Rogers  v.  Colt,  1  New  Jersey,  704. 

(c)  It  would  seem  to  bo  otherwise  with  a  use,  prior  to  the  statute  of  uses.  St.  1  Rich. 
Ill,  ch.  1,  provided  that  the  conveyance  of  one  having  a  use  should  be  good  against  the 
feoffees  to  use.  It  will  be  seen  [infra,  sec.  23)  that  a  sale  on  execution  against  the  cestui  has 
the  same  effect.  Where  a  conveyance  was  made  to  trustees,  to  receive  the  rents  for  the 
uses  of  the  cestui,  during  his  liie,  then  to  his  heirs  ;  held,  the  cestui  could  neither  aliene  nor 
pledge  his  interest,  nor  authorize  the  trustee  to  sell  it.  Van  Eps  v.  Van  Eps,  9  Paige,  237. 
A  conveyance  made  hy  the  cestui  is  not  illegal  for  maintenance,  though  the  trustee  sets  up 
an  adverse  claim.     Baker  v.  Wiiiting,  3  Sumn.  476. 

Where  the  grantor,  in  a  deed  of  trust  to  secure  a  debt,  gives  a  deed  to  the  cestui  que  trust, 
such  deed  passes  only  the  equity  remaining  in  the  grantor  after  he  made  the  deed  of  trust; 
the  legal  title  remains  in  the  trustee.     Brown  v.  Bartee,  10  S.  &  M.  268. 

And  if,  on  a  sale  of  the  land  by  the  trustee,  under  the  deed  of  trust,  it  is  purchased  by  the 
cestui  que  trust ;  he  will  have  the  entire  estate  in  the  land;  and  a  sale  of  the  same  land  on 
execution,  issuing  upon  a  judgment  recovered  against  the  grantor  in  the  deed  of  trust,  will 
pass  no  estate.     lb. 


CHAP.  XXIV.]  A  TRUST  ESTATE.  329 

not  discovered  till  after  lier  dcatli.  Held,  C  was  entitled  to  curlesy.(r)(a) 
But,  where  land  is  given  to  trustees  for  the  separate  use  of  a  married 
woman,  the  husband  is  not  entitled  to  curtesy. 

4.  Devise  to  trustees  in  fee,  in  trust  to  apply  the  rents  and  profits  to 
the  Sole  and  separate  use  of  the  testator's  daughter  A,  for  her  life,  with 
a  power  of  disposal  and  appointment  to  her.  She  having"  made  no 
appointment,  her  husband  claimed  to  be  tenant  by  the  curtesy,  on  the 
ground  that  the  inheritance  descended  to  her.  Held,  the  whole  legal 
estate  was  in  the  trustees  ;  that,  although  A  had  the  (equitable)  inherit- 
ance, she  had  no  seizin  in  deed  during  coverture,  and  the  husband  had 
no  equitable  seizin,  and  could  not  have  possession  or  take  the  profits; 
that  the  testator  had  treated  the  wife  as  a  feme  sole,  and  neither  in  law 
or  equity  was  there  any  claim  to  curtesy.(2) 

5.  Money  agreed  or  directed  to  be  laid  out  in  land  may,  in  equity, 
be  subject  to  curtesy. 

6.  A  woman  devises  to  her  daughter  A  £300,  to  be  laid  out  by  her 
executors  in  land,  which  was  to  be  settled  to  the  use  of  A  and  her 
children,  remainder  over.  The  money  was  never  thus  laid  out.  After 
A's  death  and  that  of  her  issue,  her  surviving  husband,  by  a  bill  in 
equity,  prays  that  the  land  may  be  purchased  and  settled  on  him  for 
lite,  or  the  interest  of  the  money  paid  to  him  for  life.  Held,  he  should 
have  the  interest  of  the  money. (3) 

7.  It  is  said  that,  notwithstanding  some  opinions  to  the  contrary, 
the  husband  shall  have  curtesy  in  an  equitable  inheritance  of  the  wife, 
though  the  rents,  &;c.,  are  fb  be  paid  to  her  separate  use  during  cover- 
ture. The  receipt  of  them  is  a  sufficient  seizin.  But,  if  a  devise  is 
made  to  a  wife  for  her  separate  and  exclusive  use,  and  with  a  clear  and 
distinct  expression  that  the  husband  is  not  to  have  any  life  estate  or 
other  interest,  but  that  the  same  is  to  be  for  the  wife  and  her  heirs ; 
Chancery  will  consider  him  as  a  trustee,  and  not  allow  any  curtesy.(4) 

7  a.  Devise  in  trust  to  the  use  of  the  testator's  daughter,  to  her  sepa- 
rate use,  to  be  disposed  of  as  she  might  thint  proper ;  after  the  death 
of  her  husband,  the  trust  to  terminate,  and  the  daughter's  title  become 
absolute.  She  died  before  her  husband,  leaving  children.  Held,  the 
husband  was  entitled  to  curtesy,  whether  the  trust  was  determined  or 
not  by  her  death. (5) 

8.  Since  a  trust  itself  is  subject  to  curtesy,  it  seems  to  follow  of 
course  that  a  legal  estate,  to  which  a  trust  is  annexed,  is  not  thus  sub- 
ject. It  IS  said,  that  tenant  by  the  curtesy  cannot  stand  seized  to  a  use, 
for  he  is  in  by  the  act  of  law,  in  consideration  of  marriage,  and  not  in 
privity  of  estate.  But,  in  equity,  such  tenant  would  be  affected  by  the 
use  or  trust.(6) 

9.  In  England,  there  is,  at  law,  no  cbwer  in  a  trust  estate,  whether 

(1)  V'atts  V.  Ball,  1  P.  "Wms.  108;  Md  j  Cunningliara  v.  Moody,  1  Ves.  174;  Dodson 
'^■'^^^-  U'.  Hay,  3  Bro.  R.  404. 

(2)  Ilearle  v.  Greenbank,  1  Ves.  298;  lb.  (4)  4  Kent,  31  ;  Walk.  329:  3  Atk.  715; 
3  Atk.  695  ;  Cockran  v.  O'Hern,  4  W.  A  '  Co.  Lit.  29  a,  n.  6 ;  Cochran  v.  O'Hern,  4 
Serg.  95  ;  Jarvis  v.  Prentice,  19  Conn.  272.       Watts  Jfc  S.  95. 

(3)  Sweetapple  v. '  Bindon,   2  Vern.  53G ;        (5)  Payne  v.  Payne,  11  B.  Men.  138. 

(6)  2  Story,  234,  n.  4. 


(a)  In  Maryland  (Md.  L.  701,)  curtesy  is  allowed  in  equities,  but  not  to  the  prejudice  of 
any  claim  for  the  price  of  the  land,  or  other  lien. 


330 


TRUSTS.     NATURE,  ETC.,  OF 


[CHAP.  XXIY 


the  Im.sbaud  have  himself  parted  with  the  legal  title  before  marriage, 
reserving  only  a  trust ;  or  whether  a  trust  estate  has  been  directly 
limited  to  him  by  a  third  person.  The  same  rule  applies,  where  the 
husband  purchased  an  estate  in  the  name  of  a  trustee,  who  acknow- 
ledges the  trust  after  his  death.(l)  It  has  been  said,  that  a  tru.'^t  does 
not  differ  from  a  legal  estate,  except  in  regard  to  dower.{2)  (See  ch. 
81,  s.  4.) 

10.  This  point  Avas  first  settled  in  the  12th  year  of  Ch.  II,  and  has 
been  since,  though  with  apparent  reluctance,  uniformly  adhered  to.(a) 
The  grounds  of  decision  are  said  to  have  been,  partly  the  universal  un- 
derstanding of  the  community,  and  corresponding  practice  of  convey- 
ancers, to  depart  from  which  would  produce  great  confusion  of  titles, 
and  defeat  the  intention  of  numerous  limitations  ;  and  partly  the  phra- 
seology of  the  statute  of  uses,  which  in  its  preamble  recites,  that  by 
means  of  uses  women  had  been  defeated  of  their  dower ;  which  incident 
must  still  belong  to  trusts,  a  trust  being  since  the  statute  what  a  use 
was  before. (3)(i) 

11.  A  distinguished  English  judge  (Sir  Joseph  Jekyll)  was  of  opinion, 
that  the  rule  of  precluding  a  widow  from  dower  in  a  trust  was  applica- 
ble, only  where  the  husband  created  the  trust  by  some  act  of  his  own, 
as  b}^  purchasing  an  estate  in  the  name  of  a  trustee,  thereby  showing 
a  clear  intent  to  cut  off  the  claim  of  dower ;  and  not  where  the  land 
came  to  the  husband  by  the  act  of  a  third  person.  The  same  judge 
also  held,  that  the  widow  should  have  dower,  where  a  time  is  fixed  for 
the  trustee's  conveying  the  legal  estate  to  tie  husband,  but  the  latter 
dies  before  such  conveyance  is  made  ;  upon  the  principle,  that  what 
ought  to  be  done  by  a  trustee,  is  regarded  in  law  as  actually  done.(4) 

12.  These  distinctions,  however,  have  been  since  rejected,  and  the  rule 
against  the  right  of  dower  in  a  trust  estate  held  to  be  a  universal  one. 
The  cases,  in  which  the  above-named  suggestions  of  Sir  J.  Jek3'll  were 
made,  are  said  to  have  turned  upon  their  own  peculiar  circumstances, 
and  not  to  warrant  any  general  conclusion. (5) 


(1)  Colt  V.  Colt,  1  Cha.  R.  134  ;  Bottomley 
V.  Fairfiix,  Free,  in  Cha.  336  ;  1  Story  on 
Equ.  (3d  ed.)  74;  Ray  v.  Ring,  5  Barn.  &  Al. 
561;  Hamlin  v.  Hamlin,  19  Maine,  141; 
Cooper  V.  Whitney,  3  Hill,  95. 

(2)  Ambrose  v.  Ambrose,  1  P.  "Wms.  321 ; 
Danfortli  v.  Lowry,  3  Hayw  68. 

(3)  Chaplin  v.  Ciiaplin,  3  P.  Wms.  235; 
Att'y  Gen.  v.  Scott,  For.  138. 


(4)  Banks  v.  Sutton,  2  P.  Wms.  T08 ; 
Fletcher  v.  Robinson,  For.  139. 

(5)  Godwin  V.  Winsmore,  2  Atk.  525  ; 
Forder  v.  Wade,  4  Bro.  R.  525  ;  For.  139. 
See  Knight  v.  Frampton,  4  Beav.  10  ;  Hamb- 
lin  V.  Hamblin,  1  Appl.  141,  adopting  the 
Englisli  rule. 


(a)  But,  by  St.  3  &  4  Wm.  IV,  ch.  105,  sec.  2,  a  widow  may  claim  dower  in  equity  from 
any  beneflcial  estate  or  inheritance  in  possession,  except  joint  tenancy,  in  whicli  she  is  not 
dowable  at  law.     1  Steph.  349-50. 

[h)  A.nother  reason  of  the  distinction  made  between  curtesy  and  dower  in  trusts  is  said 
to  be,  that  there  had  long  been  an  understanding  among  the  people,  that  a  trust  estate  was 
not  subject  to  dower,  and  numerous  conveyances  and  settlements  had  proceeded  upon  this 
supposition.  During  coverture,  a  woman  could  not  aliene  without  her  husband ;  and 
therefore  it  was  not  deemed  necessary  to  obtain  her  concurrence  in  a  transfer  of  the  land. 
But  no  one  would  purchase  an  estate  subject  to  curtesy,  without  the  assent  of  the  husband. 
Therefore,  the  allowance  of  dower  would  operate  injuriously  upon  purchasers,  while  tiiat  of 
curte.sy  would  not,  because  they  had  provided  against  it.  2  Story,  237,  n.  1;  D'Arcy  v. 
Blake,  2  Sch.  &  Lef.  387. 


CHAP.  XX I Y.]  A  TRUST  ESTATE.  331 

18.  But  the  widow  of  a  trusteu  shall  not  have  (Io\ver,(l)(a) 

14.  In  the  United  States,  the  rule  against  allowing  dower  in  trusts 
has  been  extensively  changed.  In  North  Carolin;i,  Virginia,(/>)  Illinois, 
Indiana,  Tennessee  and  Ohio,(c)  a  widow  has  dower  in  all  equitable  es- 
tates. In  Pennsylvania,  generally,  only  in  legal  estates;  but  she  has 
dower  in  a  trust,  by  an  innnemorial  usage,  whieh  has  never  bten  ques- 
tioned.    So,  in  Maryland,  by  statute.(2) 

15.  In  Ohio,  equitable  estates  are  enumerated,  as  "all  'the  right,  title 
and  interest,  &c.,  held  by  bond,  article,  lease,  or  other  evidence  of 
claim. "(('/)  But  while,  in  legal  estates,  dower  is  allowed  of  all  lands 
owned  during  coverture,  in  equitable  estates  it  is  limited  to  such  as  the 
husband  held  at  his  death. (3) 

16.  By  the  English  statute  of  frauds,  and  by  the  late  St.  1  6c  2  Viet., 
c.  110,  s.  11,  trusts  are  made  liable  to  tlte  debts  of  the  cestui  que  trust, 
and  declared  to  be  assets  in  the  hands  of  his  heir.  The  contrary  had 
previously  been  held  by  the  courts,  in  analogy  to  the  old  law  of  uses. 
In  North  Carolina,  equitable  estates  are  declared  to  be  personal  assets ; 
in  Indiana,  assets  by  descent  in  the  hands  of  the  heir.  In  Georgia  and 
South  Carolina,  a  trust  estate  is  assets  by  descent.(4) 

17.  Land  held  in  trust  cannot  be  sold  b_y  the  adniinistrator  of  the 
trustee,  as  assets.  Nor  is  it  bound  by  a  judgment,  even  though  con- 
fessed, and  for  the  purchase-rnonc}'  ;(e)  nor  can  it  be  taken  upon  exe- 
cution against  the  trustee. (5) 

18.  Although  the  aid  of  a  court  of  equity  is  required,  to  obtain  pos- 
ses.sion  of  a  trust  estate  after  the  death  of  the  cestui,  yet,  when  obtained, 
it  is  legal,  not  merely  equitable  assets.(()) 

(1)  Robison  v.  Codman,  1  Snmn.  121;:  (4)  Bennet  ?•.  Box,  1  Cba.  Cas.  12;  1  N.  C. 
Cooper  V.  Whitney,  3  Hill,  101 ;  Derusli  v.  \  Rev.  St.  278  ;  Ind.  Rev.  L.  276:  Priuce,  916  ; 
Bruwn,  8  Oliio,  412.  2  Brev.  Dig.  -316. 

(2)  1  VHr.  R.  C.  159;  Illin.  R.  L.  627  ;  Purd.  1      (5)  Robison    v.    Codman,    1    Sumn.    121 
Di-r.  221 ;    1   N.  C.  Rev.  St.  614  ;  2  S.  &  R.  j  Elliott  v.  ArniHtrong,  2  Blackf.  198 ;   2  Story. 
554  ;   Tnd.  Rev.  L  209  ;  Ten.  St.  1823,  46  ;  4    242  ;  4  J.  J.  Mar.  599  ;  Williams  v.  FulJerton, 
Gritf.  909;  M'Maiian  v.  Kimball,  3  Blackf.  6.    12   Met.   346;  Willielm  v.   Tolmer,   6  Barr, 

(3)  W'alk.  Intro.  312,324;  Smiley  v. Wright,  ^  296. 

2  Ohio,  507.     See  eh.  10,  sec.  15.  !      (6)  2  Atk.  293. 

(a)  Five  person.^  purchased  land  for  the  joint  use  of  all,  and  agreed,  in  writing,  that  one 
should  take  a  deed,  and  pay  over  sliares  of  the  proceeds  to  the  otiiers.  Upon  a  bill  for 
partition,  hold,  the  wife  of  the  trustee  had  gained  no  inchoate  right  of  dower.  Castor  r. 
Clarke,  3  EJw.  428. 

(b)  Independently  of  a  statutory  provision,  there  would  be  uo  dower.  Claiborne  v.  Hen- 
derson, 3  Hen.  &  M.  322. 

(c)  Chancellor  Kent  says,  this  is  said  to  be  the  rule  «?  to  trusts  in  New  Jersey,  Penn.syl- 
vania,  Maryland,  Virginia,  Kentucky,  Missi.'ssippi,  Ohio,  Illinois  and  Alabama.  4  Kent,  45; 
Clay's  Dig.  157.  In  Kentucky,  a  transfer  by  the  husband  bars  dower  in  equitable  estates. 
Lawson  v.  Morton,  6  Dana,  47 i. 

(rf)  In  Indiana,  dower  is  allowed  in  property  contracted  for,  iu  proportion  to  the  price 
paid.     Rev.  St.  238-9. 

(e)  A  and  others,  who  had  liens  upon  real  estate  of  a  corporation,  held  for  church  and 
school  purpo.scs,  agreed  to  purchase  the  estate  at  sheriflf's  sale.  It  was  accordingly  purchased 
by  A,  and  conveyed  to  him  by  the  sheriff,  and  ho  executed  a  declaration  of  trust,  that  he 
would  hold  the  same  to  sell  and  pay  to  himself  and  hia  associates  certain  specified  amounts, 
any  remainder  oi  the  proceeds  of  the  sale  to  be  paid  to  the  use  of  the  corporation.  Held,  A 
had  such  an  interest  in  the  estate  as  could  be  bound  by  a  judgment  against  him  ;  and,  on  a  sale 
by  a  trustee  appointed  by  the  court,  in  the  room  ot  A,  tiie  share  of  the  proceeds,  formerly  pay- 
able to  A,  was  to  be  paid  to  his  judgment  creditor,  in  preference  to  one  to  whom  he  had  trans- 
ferred the  same  by  an  assignment  subsequent  to  the  judgment.  Drysdale'a  Appeal,  3 
Harris,  457. 


332 


TRUSTS.     NATURE,  ETC.,  OP 


[CHAP.  XXIV. 


19.  In  Massachusetts,  Pennsylvauia  and  Ohio,  a  trust  estate  cannot 
be  taken  in  execution  by  a  creditor  of  the  cestui.  In  Ohio,  it  may  be 
reached  by  a  process  in  Chancery.  It  is  held,  that  an  equitable  title  to 
land,  which  is  not  complete  and  perfect,  and  especially  an  imperfect 
equity  of  a  complicated  character,  is  not  the  subject  of  sale  under  exe- 
cution. Tlie  creditor  m^ust  resort  to  a  court  of  chancery,  in  order  to 
reach  such  an  equit3^(l) 

20.  Trusts  are  liable  to  debts  in  North  Carolina,  Maryland,  Virginia, 
Kentucky,(a)  Georgia,  New  York,  New  Hampshire  and  Indiana,  more 
especially,  implied  trusts.(2) 

21.  In  Tennessee,  where  land  has  been  sold  under  a  deed  of  trust,  it 
is  redeemable,  as  in  case  of  sales  on  execution  and  chancery  decrees.  In 
the  same  State,  the  English  statutes,  subjecting  trusts  to  execution,  are 
held  to  be  in  force.  But  they  are  applicable  only  to  trusts  created  by 
or  resulting  from  Si  conveyance,  not  to  those  which  are  merely  constructive 
or  covenanted  to  he  raised.  Thus,  the  interest  of  one  holding  an  obliga- 
tion for  land  is  not  subject  to  execution. (3) 

22.  In  New  Hampshire,  although  the  statute  upon  the  subject  pro- 
vides only  for  levying  executions  upon  estates  in  fee,  it  is  the  immemo- 
rial usage  to  levy  them  upon  lesser  estates,  and  upon  trusts.  So,  a  de- 
vise in  trust,  to  permit  the  cestui  to  occupy  and  receive  the  income, 
vests  in  him  an  interest  which  is  liable  to  be  taken  on  execution.  It  is 
an  executed  use.(4:) 

'  23.  In  North  Carolina,  the  statute,  subjecting  trusts  to  legal  process 
against  the  cestui,  applies  only  to  those  cases  where  the  estate  is  held 
solely  in  trust  for  the  defendant.  A  sale  on  execution  passes  not  only 
his  interest,  but  the  trustee's  also.  Hence,  where  there  are  other  trusts,  as, 
for  instance,  to  sell  and  pay  debts,  a  sale  on  execution  against  the  cestui 
would  injuriously  affect  third  persons.(5)  So,  in  New  York,  a  trust  is 
not  subject  to  an  execution  against  the  cestui,  unless  the  trustee  holds 
the  legal  title  as  a  clear  simple  trust,  for  the  judgment  of  debtor  alone.(6) 

24,  A  married  woman,  for  whose  benetit  a  trust  has  been  created, 
even  by  herself  before  marriage,  cannot,  by  her  own  act,  subject  the 
estate  to  be  taken  on  execution. 

25.  A  woman,  before  marriage,  conveyed  her  property,  in  trust  for 
herself,  to  her  brother.  The  deed  provided,  that  she  and  her  future 
husband  should  remain  in  possession,  so  long  as  the}^  made  a  proper 


(1)  Walk.  Intro.  312;  Russell  v.  Lewis,  2 
Pick.  508;  Merrill  v.  Brown,  12  lb.  216; 
Aslihurst  V.  Given,  5  Watts  &  S  323 ;  Hop- 
kins V.  Carey,  23  Miss.  54 ;  Eyrick  v.  Het- 
rick,  1  Harr.  488.  See  Matliews  v.  Stephen- 
son, 6  Barr,  496. 

(2)  1  N.  C.  Rev.  S.  266;  1  Vir.  Rev.  C.  159: 
1  Ky.  R.  L-  443.  653;  Prince,  916;  4  N. 
H.  402-3;  Ontario,  &e.  v.  Root,  3  Paige, 
478;  Blair  v.  Bass,  4  Blackf!  539;  Pool  v. 
Glover,  2  Ired.  129;  Lynch  v.  Utica,  &c.,  18 


Wend.  236 ;  M'Meehen  v.  Marman,  8  Gill  & 
J.  57  ;  Gowing  v.  Rich,  1  Ired.  553  ;  Uphara 
V.  Varnev,  15  N.  H.  462;  U.  S.  Dig.  1848, 
127. 

(3)  Tenn.  St.  1823,  23;  Shute  v.  Harder,  1 
Yerg.  1. 

(4)  Pritchard  v.  Brown.  4  N.  H.  402-3; 
Uphatn  V.  Varnev,  15  N.  H.  462. 

(5)  Harrison  v.  Battle,  1  Lev.  Eq.  537  ;  Da- 
vis V.  Garrett,  3  Ired,  459. 

(6)  Ontario,  &c.  v.  Root,  3  Paige,  478. 


(a)  In  this  State,  the  trust  estate  is  liable  in  Chancery.  And,  pending  a  suit  against  the 
heir  of  the  cestui  for  a  debt  due  from  the  latter,  the  estate  cannot  be  sold  upon  an  execu- 
tion against  the  heir  himself,  Gillispie  v.  Walker,  3  B.  Mon.  505.  A  cestui,  who  is  not 
party  to  a  sale  of  the  estate  on  execution,  may  be  relieved  in  equity,  after  discharging  the 
equiuble  claims  of  the  purchaser.     Cassiday  v.  M'Dauiel,  8  B.  Mon.  519. 


CHAP.  XXIV.]  A  TRUST  ESTATE.  335 

use  of  the  property,  and  that,  whenever  they  should  use  it  improperly, 
it  should  be  at  the  trustee's  disposal.  The  husband  and  wli'e  were 
always  in  possession.  They  joined  in  giving  a  note,  in  seW,lenient  of  a 
claim  against  him;  upon  which  judgment  was  recovered,  and  her  in- 
terest in  the  estate  sold  on  execution,  the  creditor  having  notice  of  the 
trust.  The  purchaser,  being  the  judgment  creditor,  brings  hn  action 
of  tres}>ass  to  try  title;  held,  Chancer}'  would  restrain  such  action  by 
an  injunction. (1) 

20.  Where  a  trustee  by  his  own  act,  transfers  the  estate,  the  cestui  may, 
at  his  election,  hold  him  answerable.  But,  where  ihe  alienation  takes 
place  by  a  decree  against  the  trustee,  the  only  remedy  of  the  ceslui  is 
by  a  resort  to  the  adverse  claimant,  and  the  property  in  his  hand.<.(2) 

27.  A  trust  merges  in  the  legal  estate,  when  both  become  united  in 
one  pci'son,  because  a  man  cannot  be  trustee  for  himself. 

27  a.  Where  a  trustee  of  land  for  the  use  of  his  children  devised  to 
them  all  the  residue  of  his  estate  ;  held,  the  legal  estate  in  such  parcel 
was  vested  in  the  children,  either  under  the  residuary  devise  or  by 
descent,  and  that  their  equitable  estate  was  merged  therein. (8) 

28.  But  the  rule  is  applicable,  only  where  the  legal  and  equitable 
estates  are  co-extensive  and  commensurate.  If  the  tormer  is  an  abso- 
lute, and  the  latter  only  a  partial  estate,  there  will  be  no  merger,  be- 
cause it  might  be  an  injury  to  the  party. (4)  So,  where  a  trustee  is  one 
of  the  beneficiaries  of  the  trust,  he  takes  a  legal  estate  to  the  extent  of 
his  interest.(5) 

29.  How  far  a  cestui  que  trust  may  support  or  defend  against  an  ac- 
tion for  ilie  land,  as  between  himself  and  the  trustee,  or  himself  and  a 
third  person,  upon  the  strength  of  his  equitable  title,  seems  to  be  a 
point  un.settled  in  England,  and  with  us  variously  decided  in  the  dilTer- 
ent  States.  Lord  Mansfield  held,  that  the  cestui  que  trust  might  main- 
tain ejectment,  if  the  trust  was  clearly  proved,  but  not  otherwise;, 
while  Lord  Kenyon  ruled,  that,  where  the  legal  estate  is  outstanding  in 
another  person,  the  party  not  clothed  with  that  legal  estate  cannot^ re- 
cover in  a  court  of  law,  whether  the  action  is  brought  by  the  trustee  or 
by  a  stranger.(6) 

oO.  Li  New  York,  the  cestui  que  trust  cawn^t  defend  himself  in  an 
ejectment  brought  by  the  trustee,  by  showing  that  he  is  the  beneficiary 
of  a  resuking  irust,(7)"more  especially  unless  such  interest  is  clear  and 
precise.  Thu.s,  a  patent  for  lands  was  granted  to  A,  B  k  C,  for  them- 
.seives  and  their  associates,  being  a  settlement  of  Friends  on  the  west 
side  of  S.  lake,  to  have  and  to  hold  the  same  to  said  three  person.s,  as 
tenants  in  common  for  themselves  and  their  associates.  The  plaintiff, 
claiming  under  the  patentees,  brings  ejectment  againsi  the  defendant,  a 
member  of  the  society,  who  had  ])aid  a  proportion  of  the  purchase- 
money.  Held,  the  det\>ndanl's  title  was  too  uncertain,  to  prevail  against 
the  plaintiff's  legal  claim.     But,  where  the  trust  is  wholly  nominal,  and 

(1)  WilsoD  V.  Cheshire,    1   M'Cprd's    Cha.  j      (G)  Armstrong  v.    Reirse,    3    Burr.    1901; 
233.  {  Goodtitle  v.  Knot,  Cowp.  46  j  Doe  v.  Pott, 

(2)  Cobb  V.  Thompson,  1  M.ir.  513.  '  Dougl.  721;  Roe  v.  Reade,  8  T.   R.   122;  1 

(3)  Cooper  V.  Cooper,  1  Ilalst.  Ch.  9.  I  Pet.  -.'99  ;  lb.  430  ;  Denn  v.  Allen,  1  Penuing 

(4)  Wade  t;.  Paget,  1  Bro.  363  ;  Brydgea  v.    50 ;  M' Henry  v.  M'Call,  10  Wntts,  456. 
Brydgcs.  3  Ves.   126;  Nicholson  v.  llftisey,        (7)  Moore  v.  Spellmaii,  5  Denio,  225;  Jack- 
1  John.  Ch.  422;  Gardner  v.  Astor,  3,  53.  son  v.  Van  Slyck,  8  John.  488. 

(5)  Mason  v.  Mason,  2  Sandf.  Ch.  432.         ' 


334 


TRUSTS,   naturl:,  etc.  of 


[CHAP.  XXIV. 


executed  in  the  cestui,  a  third  person  cannot  set  it  up  as  against  the 
cestui.{l) 

31.  In  Pennsj'lvania,  a  cestui  que  trust  may  maintain  ejectment, 
where  possession  is  necessary,  to  give  him  such  enJDj-ment  of  the 
property  as  it  was  intended  he  should  have ;  and  the  legal  title  of  the 
trustee  cannot  be  set  up  against  bim  by  a  third  person.  Thus, 
where  the  owner  of  a  farm  dedicates  a  portion  of  it  to  a  charity,  as  to 
a  school,  without  a  conveyance,  and  afteiAvards  conveys  his  farm  to 
another  ;  the  grantee  becomes  only  trustee,  in  respect  to  the  portion  so 
dedicated,  for  the  cestuis  que  trust ;  and,  if  he  ousts  them,  they  may 
maintain  ejectment.(2) 

32.  So,  a  purchaser  of  land  may  bring  ejectment  against  the  vendor 
upon  a  mere  agreement,  after  tender  of  the  price  ;  and  the  vendor 
against  the  purchaser,  if  the  price  be  not  paid.(3) 

33.  In  Massachusetts,  if  the  trustee  bring  a  real  action  against  the 
cestui,  upon  the  plea  of  "  nul  disseiziu^^^  the  former  shall  prevail.  Bu; 
the  tenant  may  ])lead  specially  the  trust,  and  that  he  is  in  possession  as 
tenant  at  will,  taking  the  rents  and  profits.  In  Maryland,  such  action 
will  lie,  unless,  from  the  facts,  a  conveyance  is  to  be  presumed.  In 
Alabama,  the  cestui  cannot  defend  on  the  ground  of  improper  conduct 
by  the  trustee.(4) 

3-i.  In  Ohio,  a  trust  cannot  be  taken  advantage  of  in  ejectment,  and 
a  court  of  law  will  not  notice  it.(5) 

35.  A  cestui  may  maintain  ejectment,  after  the  purposes  of  the  deed 
of  trust  have  been  satisfied,  but  the  trustee  or  his  grantee  may  do  the 
same.(6) 

35  a.  The  trustee,  after  the  tinie  fixed  for  payment  by  the  terms  of 
a  trust  deed,  is  invested  with  the  legal  title,  and  at' law  is  the  proper 
party  to  contest  the  legal  sufficiency  of  the  deed,  and  a  verdict  for  or 
against  him,  if  obtained  without  collusion  and  fraud,  is  binding  and 
conclusive  on  his  cestui  que  trust.{7) 

36.  Where  the  circumstances  of  a  case  are  such,  as  to  require  or 
justify  the  presumption  that  the  legal  estate  has  been  conveyed  to  the 
beneficial  and  equitable  owner;  the  jury  may  be  instructed  to  rely 
upon  such  presumptiorf  and  give  their  verdict  in  favor  of  the  latter 
This  pre3unq)tion  arises  from  long-continued  possession  by  the  cestui 
and  those  under  whom  he  claims.  Although  Somewhat  analogous  to 
the  title  acquired  by  an  adverse  occvi^ancy ;  it  is  not  precisely  similar, 
because  the  possession  may  have  been  held  under  the  equitable,  instead 
of  the  legal  title.  But  the  presumption,  in  this  case,  is  founded  upon 
the  principle,  that  the  la^v  will  consider  as  done  that  which  ought  to 
have  been  done.  Like  the  presumption  of  a  grant,  it  does  not  proceed 
upon  the  belief^  that  the  thing  presumed  has  actually  taken  place,  but 


(1)  .Jackson  \).  Sisson,  2  John.  Cas.  321, 
(containinjr  a  learned  examination  of  cases  by 
Mr.  Justice  Kent.)  Welch  v.  Allen,  21 
Wend.  147. 

(2i  Kennedy  v.  Fury,  1  Dall.  72;  Smith  v. 
Patton,  1  'S.  &  R.  80.  See  Ross  w.  Barker,  5 
Watts,  391  ;  Swayze  v.  Burke,  12  Pet.  11; 
Huston  V.  Wickerham,  8  Watts,  519 ;  Pres- 
byterian, &c.  V.  Johnston,  1  W.  &  Serg.  56  ; 
Scliool,  &c.  V.  Dunkleberijer,  6  Barr,  29. 

(3)  Hawn  v.  Norris,  4  Binn.  77  ;  Minsker 


V.  ilorrison,  2  Ye.  344  ;  Mitchell  v.  De  Roche, 
1.  12. 

'  (4)  Ru.ssell  V.  Lewis.  2  Pick.  510;  Nevvhall 
V.  Wiieeler,  7  Ma.ss.  199;  Matthews^.  Ward, 
10  Gill  &  J.  443  :  Mordecai  v.  Tankersly,  1 
Ala  N,  S.  100. 

(5)  Walk  Intro.  316. 

(0)  Hopkins  v.  Ward,  6  Munf.  41  ; v. 

Stevens,  2  Rand.  422. 

(7)  Marriott  v.  Givens,  8  Ala.  694. 


CHAP.  XXIV.]  A  TRUST  ESTATE.  335 

is  adopted  from  the  principle  of  (jnietiug  the  possession,  and  the  impos- 
sibility of  discovering  in  wliom  the  legal  estate,  if  outstanding,  is  ac- 
tually vested.'  Mere  possibilities  are  not  to  be  regarded.  The  court 
must  govern  itself  by  a  moral  certainty;  for  it  is  impossible,  in  the 
nature  of  things,  there  should  be  a  mathematical  certainty  of  a  good 
title.  Ilenee,  though  the  evidence  of  actual  reconveyance*  be  slight 
and  inconclusive,  yet,  if  it  can  be  ascertained  at  wTiat  period  the 
legal  estate  ought  to  have  been  rcconveycd,  such  reconveyance  maybe 
presumed. (l)(a) 

37.  Bill  in  equity,  for  specific  performance  of  an  agreement  to  pur- 
chase land.  Defence — a  want  of  title  in  the  plaintiff.  It  appeared 
that  the  land  was  conveyed  in  166-i,  by  way  of  indemnity  against  evic- 
tion from  another  estate,  with  a  provision  for  reconveyance  of  one 
moiety,  after  the  expiration  of  two  lives,  and  eleven  years  thereafter. 
For  one  hundred  and  forty  years,  no  claim  appeared  to  have  been 
made  under  this  deed  ;  but  the  grantor,  and  those  claiming  under  him, 
were  always  in  ])ossession,  although  the  deed  was  once  mentioned  in 
an  instrument  relating  to  the  land,  made  in  169i.  Ileld,  a  re-convey- 
ance might  be  presumed,  as  to  one-half,  at  the  time  stipulated,  and,  as 
to  the  otlier,  when  the  danger  of  eviction  might  reasonably  be  consid- 
ered at  an  end,  which  must  have  been  in  much  less  time  than  one  hun- 
dred and  fort\'  years  ;  and  that  the  title  was  good.(2) 

38.  But  where  a  trust  was  presumed,  from  strong  circumstances,  once 
to  have  existed  ;  after  the  lapse  of  forty  years,  and  the  death  of  all  the 
original  parties,  it  was  also  presumed  to  be  extinguished  (3) 

39.  On  the  other  hand,  the  question  may  arise,  how  ftir  the  rights 
of  a  cestui  que  trust  are  impaired  by  mere  lapse  of  time.  On  this  point, 
it  is  held,  that  express,  ieclmical,  direct  or  j^ure  trusts,  clearly  proved,  of 
which  Chancery  has  proper,  peculiar  and  exclusive  jurisdiction,  are 
not  within  the  statute  of  limitations,  though  liable  to  be  barred  after 
the  lapse  of  a  reasonable  time  without  enforcement ;  but  implied  or  con- 
structive trusts  are ;  and  if  the  evidence  of  a  trust  is  doubtful,  adverse  pos- 
session will  have  much  effect  in  barring  a  party's  rights.  The  period  of 
limita  tion  does  not  commence,  till  the  cestui  knows  of  some  adverse  act  of 
the  trustee.  And  where  the  owner  of  the  equitable  title  is  in  possession, 
and  afterwards  evicted  by  him  having  the  mere  legal  title;  the  statute  be- 
gins to  run  only  from  the  time  of  eviction.    Imjilied  trusts  have  been  de- 

(1)  Jaclfson  y.  riercc,  2  Jolin.  22G;  Jack- 1  1  Ad.  &  Kll.  (N.  S)  4:^0.     See  Flounioy  v. 
son  V.  Moore,  U,  516;  Hillary  v.  Waller,  12    Jolinson,  1  B.  ilon.  693. 
Ves.  250-4;  Lyddall  v.  Weston,  2  Alk.  19;        (2)  Hilary  v.  Waller,  12  Ves  239. 
Eldridge  y.  Knott,  Cowp.  215;  Doe  f.  Davis,  I      (3)  Prevost  v.  Gratz,  6  Wheat.  481. 


(a)  Courts  sometimes  presume  extinpiiisliment  of  a  title,  in  order  to  sustain,  but  rarely  to 
disturb,  the  possession.  Adair  v.  Lolt,  3  Hill,  182.  Where  a  deed  was  made  to  trustees 
for  the  use  of  a  church,  which  was  alterwards  incorporated  ;  held,  alter  a  lonjr  lime,  a  cou- 
vej^auce  from  the  trustees  to  the  corporation  would  be  presumed.  Dutch,  &v.  v.  Mott,  7 
Paige,  77. 

But;  where  the  lo^'nl  estate  is  vested  by  a  will  in  executors  or  trustees,  to  eflecluate  the 
purposes  of  the  will,  and  a  release  of  their  estate  would  be  a  breach  of  duty;  no  presump- 
tion in  favor  of  such  release  can  he  allowed.     Brewster  v.  Striker,  2  Comst.  19. 

Delivery  and  acceptance  of  a  conveyance  in  trust  will  Ijo  presumed,  after  possession  held 
by  the  cestui  i/uetriuil  for  more  than  twenty-five  years,  although  the  trustee  be  a  lunatic  at 
the  time  of  the  conveyance,  and  continue  so.     Eyrick  v.  Hetrick,  1  Harris,  488. 


336 


TRUSTS.    NATURE,  ETC.,  OF 


[CHAP.  XXIY 


fined,  as  those  of  wbicli  courts  of  law  have  jurisdiction.(l)  The  Su* 
preme  Court  of  the  United  States  have  said,  that,  where  a  trust  is  clearly 
established,  more  especially  if  there  has  been  fraud,  on  principles  of  etev 
nal  justice,  lapse  of  time  shall  be  no  bar  to  relief  (2)(a) 


derburn,  4  My.  &  C.  41 ;  Atty,  &c.  v.  Fishmon- 
gers', &c.,  5  My.  &  C.  16  ;  Price  v.  Blakeraore, 

6  Beav.  507  ;  Bank.  &c.  v.  Beverly,  1  How. 
134;  Baker  r.  Whiling,  3  Sumn.  476;  Couch, 
V  Couch,  9  B.  Mon.  160 ;  Thomasu.  Brinsfield, 

7  Geo.  154;  Yarick  v.  Edwards.  11  Paige, 
290;  Murdock  v.  Hughes,  7  S.  &  M.  219; 
Lexington  v.  Bridges,  7  B.  Mon.  565.  See 
McDonald  v.Sims,  3  Kelly,  383 ;  Perkins  v. 
Cartwell,   4  Harring.  270. 

(2)  Prevost  v.  Gratz,  6  Wheat.  498  ;  see  2 
Story,  735,  et  seq. ;  Planters',  &c.  v.  Farmers', 
&c.,  8  Gill  &  J.  449  ;  Wood.  v.  Wood,  3  Ala- 
bama, (N.  S.,)  756;  Smith  v.  Ramsey,  1  Gilm. 
373. 


(1)  3  Hay w.  153;  Shelby  v.  Shelby,  1  Cooke, 
182;  Kane  v.  Bloodgood,  7  John.  Ch.  Ill; 
Falls  V.  Torrance,  4  Hawk.  413  ;  Van  Rhyn 
V.  Vincent,  1  M'Cord's  Cha.  313  ;  Oliver  v. 
Piatt,  3  How.  333  ;  White  v.  White,  1  Md.  Ch. 
53  ;  McDonald  v.  Simms,  3  Kelly,  383  ;  Evarts 
V.  Nason,  11  Verm.  122  ;  Finney  f.  Cochran,  1 
W.  &  Serg.  118;  Talbott  v.  Todd,  5  Dana,  199  ; 
Singleton  v.  Moore,  Rice,  110;  Bohannon 
V.  Ithreshley,  2  B.  Monr.  438 ;  Moore  v. 
Green,  3  B.  Monr.  413  ;  Nicholson  v.  Lauder- 
dale, 3  Humph.  200;  Lloyd  v.  Currin,  lb. 
462  ;  Porter  v.  Porter,  lb.  586;  Piatt  v.  Oli- 
ver, 2  Blackf.  268;  Walton  v.  Coulson,  1 
M'L.  120;  Maury  v.  Mason,  8  For.  211 ;  Ha- 
sell,  3  Y.  &  Coll.  617  ;  Wedderburn  v.  Wed- 

(a)  Y'here  a  will  authorizes  the  executors  to  sell  lands  for  payment  of  debts ;  a  trust  is 
hereby  created,  and  the  lien  upon  the  lands  continues,  till  a  presumption  of  payment  arises 
from  lapse  of  time.  Such  lien  is  not  limited  with  regard  to  time,  as  in  ordinary  cases. 
Alexander  v.  McMurray,  8  Watts,  504;  Steel  v.  Henry,  9,  523.  When  an  action  is  brought 
by  a  cestui  qiie  trust,  to  enforce  against  the  trustee  the  provisions  of  the  trust  deed,  and  he 
does  not  deny  the  complainant's  interest  in  the  trust  estate,  but  defends  upon  other  grounds ; 
the  limitation  to  the  suit  is  the  time  applicable  to  sealed  instruments.  Flint  v.  Hatchett,  9 
Geo.  328. 

One  having  the  legal  title  to  land  conveyed  it  to  a  purchaser,  having  no  notice  of  any 
trust,  and  he  after  eighteen  years  devised  the  land.  Held,  after  the  lapse  of  thirty  years,  a 
person  claiming  a  trust  in  the  property  was  barred.     Coxe  v.  Smith,  4  John.  Cha.  271. 

It  has  been  said,  that,  as  between  trustee  and  cestui,  the  former  does  not  cease  to  stand 
in  that  relation  by  any  wrongful  act  in  regard  to  the  estate,  except  at  the  election  of  the  lat- 
ter. Also  that  trusts  are  excepted  from  the  statute  of  limitations,  only  as  between  the  trus- 
tee and  cestui.  Falls  v.  Torrance,  4  Hawk.  413  ;  Fisher  v.  Tucker,  1  McC.  Cha.  176 ;  Llew- 
ellin  V.  Mack  worth,  15  Yin.  125. 


CHAP.  XXY.]  TRUSTS— CESTUI  AND  TRUSTEE,  ETC. 


337 


CHAPTER   XXV. 

TRUSTS— CESTUI  AND  TRUSTEE— TUKIR  RKSPECTIVE  INTERESTS,  RICJIITS 
AND  DUTIES,  AS  BETWEEN  THEMSELVES,  AND  IN  RELATION  TO  TUIRD 
PERSONS.  _-- 


1.  lucidents  of  a  trust — right  of  cestui  to 
a  conveyance. 

5.  Cestui  not  prejudiced  by  any  act,  &c., 

of  trustee. 

6.  Change  of  estate  by  trustee. 

7.  Executory    agreement  —  binding    in 

favor  of  cestui. 

8.  Conveyance   by  trustee  to  third  per- 
sons— notice  of  trust,  &c. 

Authorized  sale  by  trustee — liabihty 
of  purchaser  to  the  cestui. 

37.  Joint  trustees — conveyances  and  re- 

ceipts by. 

38.  Liability  of  trustee  to  cestui.    Release 

of  debts. 

39.  Sale  of  land. 

40.  One  trustee,  whether  liable  for  another. 

41.  For   what   amount  trustees   shall  ac- 

count. 


22. 


42. 
43. 

44. 

49. 


73. 
75. 
76. 

77. 
78. 

81. 
82. 
83. 
85. 


Exchange  of  lands. 

Cestuts  remedy  against  trustee. 

Compensation  and  allowance  to  trus- 
tee. 

Trustee  shall  not  purchase  the  trust 
estate. 

Exceptions, 

Disclaimer  and  release  by  trustee. 

Trustee  cannot  delegate  his  power. 

Statutory  provisions  as  to  joint  trus- 
tees. 

Joint  trustees  in  New  York. 

Chancery  may  remove,  appoint  new 
trustee,  &c. 

Descent  of  trust  to  heirs. 

Who  may  be  trustees. 

Trust /asiews  on  the  estate. 

How  affected  by  escheat,  &c. 


1.  The  three  leading  incidents  of  a  trust,  as  of  a  use  at  common 
law,  are  pernancy  of  the  profits,  execution  of  estates,  and  defence  of  the 
land.{l)  The  first  and  last  of  these  properties  seem  not  to  require  any 
particular  comment.  AVith  regard  to  the  second,  it  is  said,  that,  where 
a  cestui  has  an  absolute  interest  in  the  trust,  he  may  compel  the  trustee 
to  convey  the  legal  estate  to  himself  or  any  one  whom  he  shall  ap- 
point.(2)  Of  course,  the  cestui  has  no  such  right,  where  the  trust  is 
created  only  in  part  for  his  benefit;  as,  for  instance,  where  annuities 
are  first  to  be  paid  by  the  trustee.  And  the  rule  seems  equally  inap- 
plicable to  that  numerous  class  of  case.s,  in  which  a  leading  object  of 
the  party,  who  conveyed  or  devised  the  laud,  was  to  vest  the  legal 
estate  permanently  in  the  trustee  and  his  successors,  and  such  object 
would  be  defeated  by  compelling  them  to  part  with  it.  The  rule  is, 
that,  in  the  exercise  of  a  sound  discretion,  equity  will  compel  the  trus- 
tee to  transfer  the  legal  estate,  unless  the  intent  of  the  party  creating 
the  trust  require  that  he  receive  the  profits.(3) 

2.  Thus,  where  one  devised  the  use  and  improvement  of  land  for 
the  support  of  a  child,  providing  that,  so  long  as  he  should  be  indus- 
trious and  economical,  he  should  be  entitled  to  the  use  and  improve- 
ment, and  to  all  he  should  raise  by  virtue  of  the  improvement ;  the 
cestui,  if  shown  to  be  incapable  and  of  intemperate  habits,  though  he 
were  so  in  the  testator's  lifetime,  shall  not  recover  possession  from  the 
trustee.  (4) 

3.  It  is  doubtful  whether  a  trustee  can  safely  make  a  conveyance  to 


(1)  See  ch.  20,  sec.  7. 

(2)  1  Cruise,  350. 

(3)  Bass  V.  Scott,  2  Leigh,  359;  Jasper  v. 
Maxwell,  1  Dev.  Eq.  357 ;  Lynch  v  Utica, 
&c.,  18  Wend.  236.    See  Morton  v.  South- 


gate,  28  Maine,  41;  Bishop   v.  Bisliop,    13 
Ala.  475;  Flournoy  v.  Johnson,  7  B.  Mon. 
G93  ;  Hoare  v.  Harris,  11  Iliin.  24. 
(4)  Root  V.  Yeomans,  15  Pick.  488. 


Vol.  I. 


22 


338 


TRUSTS— CESTUI  AND 


[CHAP.  XXV. 


execute  the  trust,  without  a  decree  in  equity,  and  costs  will  not  be 
awarded  against  him  for  refusing  to  do  so.  The  general  ride  is,  in 
case  of  infants,  that  a  trustee  cannot  be  excused  from  strict  perform- 
ance without  a  decree.(l)  In  Kentucky,  a  sale  by  a  trustee  is  invalid, 
unless  made  under  a  decree,  or  unless  the  party  creating  the  trust 
joins.(2) 

4.  A  trustee  cannot  justify  his  refusal  to  convey  the  estate,  by 
buying  in  an  outstanding  title.(3)(«) 

5.  It  is  the  general  rule  of  equity,  that  neither  any  act  nor  any 
omission,  on  the  part  of  a  trustee,  shall  be  allowed  to  prejudice  the 
cestui  que  trust.{^)  To  prevent  this,  equity  will  treat  money  as  land 
and  land  as  mone^-,  and  consider  that  which  ought  to  be  done  as 
actually  done.(5)  So  long  as  the  subject  of  an  express  or  implied  trust 
remains  in  the  hands  of  the  trustee,  or  of  his  heirs,  executors,  adminis- 
trators or  devisees,  the  Court  of  Chancery  will  lay  hold  of  it  for  the 
benefit  of  the  cestui.{6) 

6.  Where  a  cestui  is  of  age,  the  trustee  has  no  right,  unless  expressly 
empowered,  to  change  the  nature  of  the  estate ;  to  convert  land  into 


(1)  2  Story  on  Equity,  243  ;  "^ood  v. 
Wood,  5  Paige,  597.  See  Armstrong  v. 
Zane,  12  Oliio,  287  ;  Williams,  3  Bland,  190; 
Wampler  v.  Shipley,  lb.  183;  Winder  v. 
Diflfenderfler,  2,  1G7  ;  Jones  v.  i^toekett,  426  ; 
Orchard  v.  Smith,  319;  Dorsey  v.  Gilbert,  11 
Gil!   &  J.  87  ;  Calvert  v,  Godfrey,  6  Beav.  97. 


(2)  I  Ky.  Rev.  L.  449. 

(3)  Kellogg  V.  Wood,  4  Paige,  578. 

(4)  Lechmere  v.  Carlisle,  3  P.  Wms.  215  ; 
Banks  v.  Sutton,  2,  715.  See  Neate  v.  Pink, 
8  Kng.  L.  &  Equ.  205. 

(5)  See  ch.  1. 

(6)  Ridgely  v.  Carey,4  Har.  &  McHen.  198. 


(a)  The  legislature  may  constitutionally  order  a  conveyance  from  the  trustee  to  the 
cestui.  Dutch,  &c.  v.  Mott,  7  Paige,  77.  Where  land  is  given  in  trust  to  convey  to  the 
cestui  at  such  a  time,  with  a  power  of  sale  during  the  trust,  and  a  conveyance  is  not  then 
made;  the  trustee  cannot  afterwards  sell,  though  the  trust  continues.  Grieveson  v.  Kirsopp, 
2  Keen,  653.     See  Wood  v.  White,  lb.  664. 

An  equitable  tenant  for  life,  under  a  will,  may  have  possession,  upon  giving  security  to 
fulfil  its  provisions ;  and,  although  the  trustee  had  previously  leased  to  one  having  notice, 
the  court  still  appointed  a  receiver  to  let  to  the  tenant  for  life,  with  security.  Baykes  v. 
Baykes,  1  Coll.  537. 

In  decreeing  a  conveyance  of  the  legal  estate  by  a  trustee,  equity  will  not  require  a  gene- 
ral warrant}^  deed  ;  but  only  a  special  warranty  against  his  own  acts.  Hoare  v.  Harris,  11 
lUin.  24.  It  is  said,  the  court  will  not  take  the  legal  estate  from  a  trustee,  and  vest  it  in  the 
part}'  entitled,  till  a  refusal  to  act  by  the  party  entitled  to  a  conveyance.  Hodgson,  &c., 
4  Kng.  L  &  Kqn.  182. 

To  a  bill  tiled  by  a  cestui  que  h-usi  against  the  trustees  and  the  other  cestuis  q-ue  trust,  for 
the  purpose  of  obtaining  a  conveyance  of  the  complainant's  share  of  the  legal  title  to  real 
estate,  alleged  to  be  in  the  trustees,  and  for  partition,  the  defendants  pleaded  that  neither 
the  complainant  nor  tlie  trustees  were,  nor  was  either  of  them,  in  possession  of  the  premises 
at  the  commencement  of  the  suit.  Without  denying  the  allegation  in  the  bill,  that  the 
trustees  heW  the  legal  title  as  trustees  for  the  complainant  and  tlie  other  ce-^tuis  que  trust, 
in  different  undivided  proportions;  held,  the  complainant  was  entitled  to  a  decree  estab- 
lishing the  alleged  trust,  and  directing  the  conveyance  of  the  complainant's  share  of  the 
legal  estate  to  him,  vviienever  the  trustees  could  legally  make  such  conveyance,  notwith- 
standing the  whole  premi.«es  were,  at  the  time,  held  adversely  to  both  parties.  Bradstreet 
V.  Scliuyler,  3  Barb.  Ch.  608. 

A  trustee,  who  permits  the  debtor  to  retain  possession  of  the  estate,  waste  it,  and  use  it 
as  his  own,  is  responsiljle  for  the  injury  to  ihe  trust  fund,  out  of  his  own  estate.  Harrison 
V.  Mock.  10  Ala.  185. 

It  is  no  [iround  for  staying  a  decree  upon  a  claim  for  the  execution  of  a  trust,  that  a  bill 
has  been  filed  for  its  execution,  embracing,  in  addition,  other  objects.  Scott  v.  Hastings,  5 
Eng.  Law  and  Eq.  64. 


CHAP.  XXV.]  TRUSTEK;   RIGHTS,  ETC.  339 

money,  or   the  converse.      Oilierwisc,   it  seems,   if  the   cestui  is   an 
infiint.(l)(a)  ^ 

7.  Kven  where  a  trust  consists  in  a  ni're  executory  agreement  between 
the  trustee  and  a  third  part\^,  such  agreement  cannot  be  revoked,  to 
the  prejudice  of  the  cestui.  Thus,  where  a  father  contracts  in  writing 
for  the  purchase  of  land,  in  trust  for  his  son,  the  trust  will  ^o  enforced, 
although  the  vendor  has  since,  with  the  father's  coneeiit,  devised  the 
land  to  another  person.  So,  where  an  owner  of  land  contracts  to  con- 
vey to  one  person,  and  conveys  to  another,  having  notice  of  such  con- 
tract; the  purchaser  takes  subject  to  all  the  rights  and  equities  of  the 
former  contracting  party ,(2) 

8.  But,  if  a  trustee  convey  the  land  held  by  him,  for  valuable  con- 
sideration, to  one  ignorant  of  the  trust,  the  latter  shall  hold  it,  dis- 
charged therefrom.  It  has  been  seen, (3)  that  a  creditor  of  the  trustee 
cannot  take  the  land  to  satisfy  his  debt ;  and  in  this  respect  it  seems  to 
make  no  difference,  whether  the  creditor  has  notice  of  the  trust  or  not. 

(1)  2  Story,  242;  DoBevoise  v.  Sandford,  i      (2)  Taylor  v.  James,  4  Des.  1;  Glover  v. 
1   Hoflm.  192.     See  Couch  v.  Couch,   9  B.    Fisher.  11  lUin.  G6G.     See  John.  Cha.  13G. 
Mon.  160.  )      (3;  Ch.  24. 

(a)  "Where  a  trustee  disposes  of  the  trust  property,  the  cestui  que  trust  may  claim  the  thing 
received  in  excliaiip:e,  if  it  can  be  identilied.  Piatt  v.  Oliver,  3  McLean,  27  ;  Turner  v.  Peti- 
grew,  6  Humph.  438.  And  this,  although  the  property  received  in  exchange  may  hare 
greatly  increased  in  value.  lb.  If  the  increased  value  be  the  result  of  skillul  labor,  the 
rule  may  be  different  lb.  Thus,  a  cestui  que  trust  may  follow  the  trust  fund  into  land 
purchased  with  it  by  the  trustee,  wliolher  the  contract  for  tiie  purchase  be  executed  or 
executory.  Brothers  v.  Porter,  6  B.  Mon.  106.  So,  money  paid  into  court  by  the  Liver- 
pool dock  trustees,  in  respect  of  leaseholds  for  years,  taken  by  them  under  the  powers  of 
their  Act  ol  Parliament,  was  ordered  to  be  reinvested  in  the  purchase  of  copyholds  of  in- 
heritance.    Coyte's,  &c.,  3  Kng.  Law  and  Kq.  224. 

Where  a  change  in  tlie  nature  of  the  estate  takes  place  by  operation  of  law,  tlie  property 
will  be  still  held  on  the  same  terms  as  before,  with  respect  to  tiie  mutual  rights  of  the  trus- 
tee and  cestui.  Thus,  real  and  personal  property  was  devised  in  trust,  the  rents,  issues  and 
income  to  be  paid  to  the  cestui.  A  part  of  the  real  estate  being  taken  for  a  railroad,  and 
the  damages  paid  to  the  trustee;  held,  this  sum  was  not  incoine,  &e.,  to  be  paid  to  the 
cestui,  but  a  sul)slituted  capital,  of  which  he  was  merelv  entitled  to  the  interest.  Gibson  v 
Cooke,  1  Met.  75. 

Devi.se  to  a  trustee,  his  heirs  and  representatives,  in  trust,  to  invest  and  re-invest  the 
land,  from  time  to  time,  in  stocks  or  other  safe  securities,  and  pay  the  income,  with  $200 
annually  of  the  principal,  to  the  testator's  daughter  for  life;  afterwards  to  pay  and  transfer 
the  whole  of  the  trust  fund  to  her  ciiildren.  Held,  by  necessary  implication,  the  trustee  had 
power  to  sell  tlie  real  estate,  discharged  of  the  trust.  Purdie  v.  Whitney,  20  Pick  25  See 
Rathbun  v.  Colton,  15  lb.  471. 

An  assignment  by  a  trustee,  purporting  to  transfer  the  trust  property,  although  insuffi- 
cient to  pass  the  interest  of  the  cestuis  que  trust,  may  pass  tho  individual  interest  of  the 
trustee.     Piatt  v.  Oliver,  3  McLean,  27. 

Wlielher  a  trustee  has  an  equitable  right  to  convey,  is  a  question  purely  of  equitable 
jurisdiction,  and  cannot  be  entertained  t)y  a  court  of  law.     Cauoy  i;.  Troutman,  7  Ired.  155. 

At  law,  a  sale  by  a  trustee  conveys  the  legal  estate,  and  the  title  of  the  purchaser  is  not 
affected  by  the  trustee's  having  exceeded  the  power  to  sell,  given  by  the  trust  deed,  nor  by 
a  misapplication  of  the  proceeds  of  the  sale.  These  are  equities,  which  belong  to  another 
tribui.al.     D'Oyley  v.  Loveland,  1  Strobh.  45. 

Where  land  was  conveyed  by  an  unsealed  writing,  in  trust,  to  pay  certain  debts;  held,  it 
was  not  sutHcient  in  it.self  to  authorize  the  trustee  to  sell,  but,  as  it  was  an  equitable  lieu 
on  the  land,  he  should  obtain  autliority  to  sell,  by  praying  for  a  decree  to  sell  'for  the  pur- 
poses of  the  trust.     Linton  v.  Boly,  12  Mis.  5G7. 

The  court  has  no  power,  upon  tiie  petition  of  the  grantor,  the  cestui  que  trust,  and  the 
tru.stees,  to  order  a  sale  of  real  estate  held  in  trust  and  partly  for  the  benefit  of  infants, 
although  a  sale  would  be  beneficial  to  the  cestui  que  trust,  where  such  a  sale  would  be  con- 
trary to  the  provisions  of  the  grant,  and  the  remainder-men  are  uncertain.  Turner,  10 
Barb.  552. 


340  TRUSTS— CESTUI  AND  [CHAP.  XXV. 

But  a  mortgage  by  the  trustee,  though,  like  a  judgment,  it  is  a  mere 
incumljrance,  will  pass  a  title  to  an  ignorant  mortgagee,  discharged  of 
the  trust.(l)  In  order  to  pass  a  perfect  title  to  the  purchaser  from  a 
trustee,  there  must  be  both  a  want  of  notice  and  a  valuable  considera- 
tion. Neither  is  sufficient  of  itself.  Hence  a  gratuitous  grantee  with- 
out notice,  and  a  purchaser  for  consideration  with  notice,  shall  be  alike 
held  chargeable  with  the  trust.  It  seems,  if  there  is  a  partial  considera- 
tion, the  purchaser  will  hold  only  pro  tanto.{2) 

9.  To  constitute  the  notice  requisite  to  charge  a  purchaser,  it  is 
sufficient  that  he  have  such  information  as  ought  to  pnt  him  on  in- 
quiry.(8) 

10.  The  pendency  of  a  suit  in  equity  by  the  cestui  against  the  trus- 
tee— after  the  service  of  a  subpoena  and  filing  the  bill — is  implied 
notice.(4) 

11.  But  not  a  recital  in  a  deed  between  third  persons,  though  regis- 
tered.(5) 

12.  Possession  of  the  land  by  the  cestui  is  implied  notice  of  the 
trust.(6) 

13.  The  purchaser  from  a  trustee  is  chargeable,  if  he  have  notice  of 
the  trust,  though  he  have  no  notice  who  is  the  cestui.  But  it  is  held, 
that  he  must  have  known  the  precise  terms  of  the  trust.(7) 

14.  Where  an  insolvent  trustee  sells,  partly  for  cash  and  partly  iu 
payment  of  his  own  debt,  a  mortgage  given  to  him  on  the  face  of  it  as 
trustee,  the  purchaser  is  chargeable  with  the  trust.(8) 

15.  But  where  a  survey  of  wild  land,  without  an  entry  in  the  book 
of  entries,  constitutes  no  appropriation,  notice  of  such  survey  to  one 
holding  a  subsequent  land-warrant  does  not  affect  his  title.(9) 

16.  If  an  executor,  not  in  advance  to  the  estate,  dispose  of  the  pro- 
perty for  his  own  private  purposes,  whether  in  payment  of  a  debt  or 
for  a  new  pecuniary  consideration  ;  the  purchaser,  having  notice,  is 
chargeable  with  the  trust. 

17.  A,  an  executor,  empowered  to  sell  lands,  sells  them,  and  takes  a 
deed  of  trust  for  the  price,  which  he  afterwards  assigns  as  security  for 
his  own  debt.  The  assignment  refers  to  the  deed  of  trust,  which  refers 
to  the  original  deed,  which  refers  to  the  will.  Held,  the  assignee  was 
chargeable  with  the  trusts  of  the  executor.(lO) 

18.  So,  an  assignment  of  a  deed  of  assignment  is  sufficient  notice  of 
the  trusts  contained  in  the  latter.(ll) 

19.  If  a  trustee  repurchase  the  estate  from  a  purchaser  without  no- 
tice, the  trust  will  revive,  as  a  charge  upon  the  land,  in  his  hauds.(12)(a) 

(1)  Finch  V.  Winchelsea,  1  P.  Wms.  278. 

(2)  Manninor  V.  6tli  Parish,  &c.,  6  Pick.  18; 
Page  V.  Page,  8  N.  II.  187  ;  Cliapiin  v.  Givens, 
Rice,  132;  Paine  v.  Webster,  1  Verm.  101  ; 
Wilson  V.  Mason,  1  Cranch,  100;  Haathorp 
V.  Hook,  1  Gill  &  J.  271  ;  1  McCord's  Cha. 
119-32 ;  Harrisburgh,  &c.  v.  lylev,  3  Watts 
&S.  373;  Hanlyt'.  Sprague,  7  Shepl.  431; 
Hallett  V.  Collins,  10  How.  174;  Harris  v. 
De  Graffenreid,  11  Ired.  89;  Webster  v. 
French,  11  lllin.  254;  Heth  v.  Richmond, 
&c.,  4  Gratt.  482;  Buck  v.  Winn,  11  B.  Men. 


320;  Pooley  v.  Budd,  7  Eng.  L.  &  Equ.  229. 

(3)  2  Paige,  202. 

(4)  Murray  v.  Ballou,  1  Jolm.  Cha.  566. 

(5)  lb. 

(6)  Pritchard  v  Brown,  4  N.  H.  404. 

(7)  Maples  v.  MedJin,  1  Mur.  219;  Conner 
V.  Tuck,  11  Ala.  794. 

(8)  Pendleton  v.  Fay,  2  Paige,  202. 

(9)  Wilson  V.  Mason,  1  Cranch,  100. 

(10)  Gratf  w.  Castlemau,  5  Rand.  195. 

(11)  Russell  w.  Clark,  7  Cranch,  69-97. 

(12)  Bovey  v.  Smith,  1  Cruise,  526. 


(a)  Land  was  conveyed  upon  divers  trusts  with  power  to  sell.     The  trustees,  meaning  to 
annul  the  trusts,  re-conveyed  to  the  grantor,  who  thus  took  the  legal  estate,  but  still  bur- 


CHAP.  XXV.] 


TRUSTEE— RIGHTS ;  ETC. 


341 


20.  But,  in  general,  a  purchaser  without  notice,  from  one  with  notice, 
is  not  chargeable  with  the  trust. 

21.  So  a  purchaser  with  notice,  from  one  without  notice.(l)(a) 

22.  The  rule  above  stated  relates  to  unauthorized  transfers  by  a  trus- 
tee, which  involve  a  violation  of  duty  on  his  part.  A  dill'ercnt  liability 
attaches  to  the  purchaser  of  trust  property,  which  the  Trustee  was  em- 
powered and  directed  to  sell,  for  a  certain  specihcd  object.  The  general 
rule  is,  that  the  deed  of  a  trustee  conveys  an  absolute  title  at  law, 
without  proof  by  the  purchaser  that  the  conditions  of  sale  have  been 
complied  with.     But  in  equity  it  is  otherwise.(2) 

23.  Where  one  conveys  or  devises  land  to  trustees,  to  be  sold  or 
mortgaged  for  payment  of  specified  debts  or  legacies,  or  to  obtain 
money  to  be  invested  in  funds,  the  purchaser,  mortgagee,  &c.,  is  bound 
to  see  to  the  application  of  the  money,  or  the  land  will  still  be  liable  in 
his  hands.(o) 

24.  So,  where  land  was  sold  under  a  decree  in  Chancery,  for  pay- 
ment of  certain  debts  ascertained  by  a  report  of  the  master ;  it  was 
held,  that  the  purchaser  was  charged  with  the  application  of  the 
money.(4) 

24  a.  A  proceeding  in  equity  will  not  discharge  the  purchaser  from 
seeing  to  the  application  of  his  purchase-money  ;  and  therefore,  the 
ce--itai  que  trusts  of  the  will  are  necessary  parties  to  any  proceeding 
looking  to  a  convey  a  nce.(5) 

25.  The  same  liability  attaches  to  the  purchaser,  where  the  purchase- 
money  is  to  be  applied  by  the  trustee  to  any  other  definite  and  specific 
object ;  as,  for  instance,  where  an  Act  of  Parliament  granted  land  in 
trust,  to  be  sold,  and  the  proceeds  applied  to  the  rebuilding  of  a  print- 
ing house.  And  the  rule  is  no  less  applicable,  where  lands  are  liable 
to  debts  without  express  charge,  as  is  universally  the  case  in  the  United 
States,  than  in  England,  where  they  are  not  thus  liable ;  because, 
though  no  charge  is  superadded  by  the  will,  as  between  the  devisee  and 
the  creditor,  the  relation  of  the  devisees  to  each  other  is  materially  affected 
by  it.(6) 

26.  Where  the  trustee  is  required  to  invest  the  proceeds  of  sale  in  a 
certain  way,  it  seems,  the  liability  of  the  purchaser  extends  so  far  only 
as  to  make  him  responsible  for  such  original  investment;  and  that  he 
is  not  answerable  for  any  subsequent  misappropriation,  either  of  the 
funds  themselves,  or  interest  or  dividends  arising  from  them. (7) 

27.  Unless  the  debts  and  legacies  are  specified,  the  purchaser  is  not 
responsible  for  the  application  of  the  purchase-money.  That  is,  unless 
the  debts  are  specified,  he  is  liable  for  neither;  the  debts  being  payable 


(1)  Bumpus  V.  Plainer,  1  Jolin.  Clia.  213. 

(2)  Taylor  v.  King,  6  Mun.  3G6-7. 

(3)  Dmicli  V.  Kent,  1  Vcr.  2G0 ;  Spalding 
V.  Shaliner,  lb.  301.  See  Fyler  v.  Fyler,  3 
Beav.  550. 


(4)  Llovd  t'.  Baldwin,  1  Yes.  173;  (Lining 
V.  Peyton,  2  Dosatis.  Cha.  378.) 

(5)  Duffy  V.  Calvert,  6  Gill.  487. 

(6)  Cotterel  v.  Hampson,   2  Vern.  5  ;   12 
"Wheat.  501. 

(7)  2  Booth's  Cas.  and  Opin.  114. 


dened  with  the  trusts.  He  thereupon  re-conveyed  to  the  trustees,  to  hold  for  the  same  uses 
and  purposes,  and  as  fully  in  every  respect,  as  under  the  original  conveyance  to  them. 
Held,  the  power  to  sell  of  the  trustees  was  revived.     Salisbury  v.  I  igelow,  20  Pick.  174. 

(a)  Eveu  though  he  had  notice  before  the  first  purchase.     Bracken  v.  Miller,  4  \Y.  & 
Serg.  102. 


342 


TRUSTS— CESTUI  AND 


[CHAP.  XXV, 


first.  And  in  this  respect  it  is  immaterial  whether  the  land  is  expressly 
given  in  trusty  or  merely  charged  with  debts.  A  charge  is  a  devise  of 
the  estate,  in  substance  and  effect,  ^iro  ianto^  upon  trust  to  pay  the 
debts.(l) 

28.  Although  most  of  the  cases,  in  which  the  doctrine  above  named 
has  been  established,  seem  to  relate  to  trustees,  yet  there  is  another 
class  of  decisions,  in  which  a  distinction  is  made  between  a  purchase 
from  a  mere  heir  or  devisee,  charged  with  payment  of  debts,  and  one 
from  a  trustee,  who  is  tlie  hand  to  receive  the  money^  and  whose  receipt, 
therefore,  is  said  to  be  a  perpetual  discharge.(2)(a)     Sir  AVilliam  Grant 


(1)  Jebb  V.  Abbet,  1  Bro.  186,  n. ;  1  Yern. 
261 ;  ■Williamson  v.  Curtis,  3  Bro.  96  :  Amb. 
677;  Dursley  v.  Berkeley,  6  Ves.  654,  n. ; 
Bailey  v.  Ekins,  7,  323 ;  Rogers  v.  Skilli- 
corne,  Amb.  188;  Gardner  v.  Gardner,  3  Mas. 


218-9  ;  Andrews  u  Sparhawk,  13  Pick.  393  ; 
Duffy  V.  Calvert,  6  Gill,  487  ;  Cadbury  v, 
Duval,  10  Barr,  215. 

(2)  Cuthbert  t;.  Baker,  Sug.   Yen.   378;  4 
Yes.  99. 


{a)  This  distinction  is  rejected  in  Massachusetts,  (Andrews  v.  Sparhawk,  13  Pick.  401.) 
but  seems  to  be  recognized  in  Maryland  (Duffey  v.  Calvert,  6  Gill,  487)  and  Illinois,  (Reeve 
V.  Allen,  5  Gilm.  236.) 

The  following  cases  illustrate  the  principles  stated  in  the  text: 

If  a  trustee,  without  the  direction  of  the  cestui  que  trust,  dispose  of  and  release  the  trust 
property  before  the  purposes  of  the  trust  are  performed,  it  does  not  release  in  equity  the 
lien  on  the  propert.y.     "VYolfe  v.  Bate,  9  B.  Mon.  208. 

A  trustee  cannot  waive  rights  of  the  cestui  que  trust  by  an  executory  contract,  without  a 
valuable  consideration,  and  in  favor  of  one  who  knew  of  'the  equities  between  the  trustee 
and  cestui  que  trust,  and  such  contract  will  not  be  enforced  by  a  court  of  equity,  to  tlie  injury 
of  the  trust  estate.     Mayrantv.  Guignard,  3  Strobh.  Eq.  112. 

Where  the  owner  of  a  Airn:  dedicates  a  portion  of  it  to  a  charity,  as  to  a  school,  without  a 
conveyance,  and  afterwards  conveys  his  farm  to  another,  the  grantee  becomes  only  trustee, 
in  respect  to  tlie  portion  so  dedicated,  for  the  cestui  que  trusts ;  ^-nd,  if  he  ousts  them  from 
thepossession  of  it,  they  may  maintain  ejectment  against  him  to  regain  it.  School  Directors 
V.  Dunkleberger,  6  Barr,  29. 

A  release  from  the  cestui  to  the  trustee  will  not  divest  any  rights  and  equities  resulting 
from  a  violation  of  his  trust  by  the  latter.     Iddings  v.  Bruen,  4  Sandf.  Ch.  3. 

Where  a  trustee  is  empowered  to  sell  trust  property,  for  the  purpose  of  re-investment,  and 
sells  it_to  one  who  knows  the  terms  of  tlie  trust,  and  who  pays  for  it  by  relieving  the  per- 
sonal liabilities  of  the  trustee;  it  seems,  the  property  remains  subject  to  the  trust.  Butler 
V.  Hicks,  US.  &  M.  78. 

A  testator  left  property  in  trust  for  the  sole  and  separate  use  of  his  daughters.  At  the 
commissioners'  sale,  under  an  order  of  distribution,  the  husband  of  a  legatee  became  a  pur- 
chaser, and  the  legacy  to  his  wife  was  allowed  in  part  payment.  Held,  he  took  the  land 
subject  to  the  trusts  declared  in  the  will;  and  a  sale  of  the  land  for  the  debt  of  the  husband 
would  not,  after  the  death  of  the  husband,  prevent  the  court,  on  her  application,  from  restor- 
ing her  to  possession,  and  ordering  an  account  of  the  rents  and  profits  from  her  husband's 
death.     Williams  v.  Hollingsworth,  1  Strobh.  Eq.  103. 

Land  was  conveyed  in  tru.st,  to  pay  the  debts  of  the  grantor  out  of  the  rents  and  profits, 
the  support  of  himself,  his  wife  and  children,  and  at  his  death  to  be  divided  among  his  chil- 
dren. Held,  tlie  trustees  had  no  authority  to  sell,  however  urgent  the  necessity.  Mundy 
V.  Vawter,  3  Gratt.  518. 

And  a  purchaser  from  such  grantor  and  the  trustees  will  be  held  to  have  notice  of  the 
trust,  and  be  bound  to  know  that  the  trustees  had  no  power  to  sell.     lb. 

But,  it  appearing  from  the  title  papers  that  the  grantor  had  only  an  interest  of  one-fourth 
part  of  the  lands  described,  although  an  equitable  interest  in  the  whole;  the  purchaser, 
■without  actual  notice  of  the  equitable  title,  will  be  held  a  purchaser  with  notice,  to  the  ex- 
tent of  only  one-fourth  part  of  the  land.     lb. 

The  cestuis  que  trust  having  obtained  a  decree  against  the  purchaser  for  such  fourth  part, 
the  trustees  and  grantor  being  also  parties  to  the  suit ;  the  purchaser  is  entitled  to  a  decree 
over  for  the  same  against  the  grantor  and  trustees,  although  he  has  a  remedy  at  law  on 
their  warranty.     lb. 

A  purchaser  of  land  from  one  who  is  in  fact  a  trustee,  but  who  sells  in  his  own  name, 
may  defend  against  payment  of  the  purchase-money,  although  he  has  taken  a  deed  and 
given  his  bonds,  on  whicli  judgments  have  been  entered      Beck  v.  Uhrick,  1  Harris,  63G. 

Where  a  veudee  of  real  estate,  in  his  answer  to  a  bill  brought  by  the  wife  and  children  of 


CHAP.  XXY.]  TRUSTEE;  RIGHTS,  ETC.  343 

remarketl,  that  the  doctrine  on  this  subject  had  been  carried  fartlicr 
than  equity  would  warrant ;  and  that,  althoufrh  where  one  purchased 
from  a  tmstee  having  no  right  to  sell,  he  ought  to  be  charged  with  the 
trust,  yet,  where  the  trustee  had  such  right,  he  should  be  able,  as  inci- 
dent thereto,  to  give  a  receipt  for  the  price. (1) 

29.  Thus,  where  an  estate  is  limited  to  trustees  for  p-ay-ment  of  debts 
and  legacies,  the  trustees  having  raised  the  money,  but  misappropriated 
it;  held,  the  creditors  and  legatees  had  no  farther  lien  upon  the  land, 
but,  having  once  borne  its  burthen,  it  went  to  the  heir ;  that  the 
estate  was  debtor  for  the  debts  and  legacies,  but  not  for  the  faults  of 
the  trustees.(2) 

30.  It  is  a  common  practice  to  make  express  provision  in  the  deed 
or  will,  that  the  receipt  of  the  trustees  shall  be  a  sullicient  discharge  to 
the  purchaser.  In  such  case,  the  latter  is  of  course  exempt  from  all 
liability.  But,  if  there  are  several  trustees,  the  receipt  of  a  part  only 
will  not  discharge  a  purchaser  with  notice,  although  the  others  have 
refused  to  act,  and  conveyed  their  interest  to  their  fellows.  An  express 
renunciation  of  the  trust,  however,  would  dispense  with  the  necessity 
of  a  signing  by  the  trustee  who  renounced. (3) 

31.  Where  a  trustee,  empowered  to  sell  the  land  and  re-invest  the 
proceeds  to  the  same  uses,  joins  in  a  conveyance  with  the  cestui ; 
held,  in  South  Carolina,  partly  on  the  giound  of  local  circumstances 
and  usage,  that  the  purchaser  is  not  responsible  for  the  disposition  of 
the  money.(4) 

32.  The  whole  doctrine  of  the  liability  of  the  purchaser,  either  from 
trustees  or  other  parties  authorized  to  sell,  for  the  right  application  of 
the  purchase-money,  seems  to  have  been  overruled  or  very  much 
shaken  by  the  Supreme  Court  of  the  United  States,  in  the  case  of 
Potter  V.  Gardner.{o)  In  this  case,  the  testator  devised  an  estate  to  his 
son  A,  in  fee,  "he  paying  all  my  just  debts  out  of  said  estate.  And  I 
do  hereby  order,  &e.,  "that  my  .son  shall  pay  my  debts  out  of  the  estate," 
&c.  A  sold  the  estate  to  B.  The  executrix  and  other  devisees  filed  a 
bill  in  equity  against  A  and  B,  for  the  purpose  of  charging  B  with  the 
application  of  the  money  to  the  debts  of  the  testator.  It  appeared  that 
a  part  of  the  purchase-money  was  paid,  by  extinguishing  debts  due  from 
A  to  third  persons,  and  a  debt  due  from  A  to  B,  and  that  another  part 


(1)  Balfour  v.  Welland,  16  Ves.  151-G. 

(2)  1  Salk.  153.* 

(3)  Crewe  v.  Dicken,  4  Ves,  97. 

(4)  Lininp  v.  Peyton,  2  Dessaus.  375. 

(5)  12  Wheat.  498.     See  Taft  v.  Morse,  4 
Met.  523  ;  Ball  v.  Harris,  4  My.  &  C.  264,  that 


whore  property  is  charf>ed  with  debts  and  de- 
vised in  trust,  the  trustee  may  sell  or  mort- 
gage, and  the  purchaser  is  not  bound  for  the 
application  of  the  purchase-money.  Eland  v. 
Eland,  lb.  420. 


It  does  not  appear  that  the  debts  were  specified. 


A,  admits  that  he  had  heard  that  the  estate  was  in  some  way  devised  in  trust  for  A,  his 
wifo  and  children;  this  admission  charges  him  with  notice.  Haywood  v.  Ensley,  8 
Humph   460. 

The  maker  of  a  note  sold  an  estate  to  the  third  indor.<ier,  under  an  agreement  that  the  pur- 
chase-money should  be  appropriated  to  the  discharge  of  the  note,  and  to  save  harmless  the 
second  indorser.  Held,  the  third  indorser  was  a  trustee  for  the  second,  and  the  assent  of 
the  second  indorser  to  Uie  trust  would  be  presumed,  and  that  the  trust  could  not  be  atler- 
wards  defeated  i>y  arrangement  between  the  maker  and  third  indorser.  Stockard  v.  Stock- 
ard,  7  Humph.  303. 


344 


TRUSTS— CESTUI  AND 


[CHAP.  XXV. 


remained  clue  in  the  form  of  a  note  not  negotiable.  Held,  B  should  he 
charged  with  such  part  of  the  purchase-money  as  remained  unpaid, 
absolutely  ;  and  with  such  part  as  had  been  applied  to  the  debts  of  A, 
contingently ; — the  decree,  in  regard  to  the  latter,  being  in  the  first 
instance  against  A,  and,  on  his  failure  to  pay,  against  B.  The  court 
remark,  that  no  question  seemed  to  be  made  as  to  the  authority  of  those 
modern  decisions^  which  deny  the  distinction  between  lands  charged  m 
the  hands  of  an  heir  or  devisee  with  the  payment  of  debts,  and  lands 
devised  to  a  trustee  for  the  payment  of  debts.  In  either  case,  the  per- 
son who  pays  the  purchase-money  to  the  person  authorized  to  sell  is 
not  bound  to  look  to  its  application,  unless  the  money  is  misapplied  (as 
in  this  case)  with  his  co-operation. (a) 

38.  It  is  said,  that,  where  lands  are  devised,  in  trust  to  be  sold  for 
payment  of  debts,  incase  the  personal  estate  shall  prove  insufficient  for 
that  purpose  ;  a  purchaser  without  notice  acquires  a  good  title  as  against 
the  heir,  although  the  personal  estate  is  not  insufficient.  The  law  does 
not  require  him  to  look  into  the  condition  of  the  testator's  estate.  But 
implied  notice  is  sufficient  to  impair  his  title  ;  as,  for  instance,  a  lis  pen- 
dens, to  have  an  account  between  the  heir  and  executor.(l) 

34.  This  doctrine,  however,  is  denied  by  high  authority ;  and  it  is 
laid  down,  that,  when  a  poiver  is  given  to  executors  to  sell  for  this  pur- 
pose, deficiency  of  personal  estate  is  a  condition  precedent  to  a  good 
title  in  the  purchaser.(2)  And,  inasmuch  as  the  personal  estate  is  by 
implication  primarily  liable,  it  seems  the  same  rule  is  applicable, 
although  the  will  does  not  expressly  order  that  it  be  sold  in  the  first 
instance. 

35.  An  order  of  court,  authorizing  a  sale  of  lands,  is  conclusive  of 
its  validity,  though  it  turns  out  that  there  were  personal  assets.(3) 


(1)  Culpeper    v.  Aston,   2   Cha.  Ca.    115: 
Coleman  v.  McKinnej,  3  J.  J.  Mar.  249. 


(2)  Fearne's  Opin.  121  ;  Sug.  Yen.  &  P. 
343. 

(3)  Leverett  v.  Harris,  7  Mass.  292. 


(a)  With  regard  to  tliis  case  it  is  to  be  observed,  that,  although  the  language  of  the  court 
disavows  the  liability  of  lona  fide  purchasers,  in  any  case,  yet  the  focts  would  warrant  no 
other  decision,  even  according  to  the  old  rule,  because  the  debts  were  not  sixdfied.  Story,  J., 
XajB  <!iovfri  the  s&vaQxnlL',  hut  viith  this  important  limitation.  S.  C.  3  Mas.  218.  And  the  Su- 
preme Court  in  Massachusetts  adopt  his  views.     Andrews  v.  Sparhawk,  13  Pick,  401. 

A  testator  devised  the  residue  ot  his  real  estate  to  his  wife  A,  for  life,  (she  being  also  exe- 
cutrix,) and  to  trustees  subject  to  her  life  estate,  in  trust  to  sell  and  pay  debts  not  otherwise 
provided  for.  The  trustees  conveyed  to  A,  under  the  power,  for  a  consideration  mentioned 
in  the  deed,  but  not  in  fact  paid.  A  mortgaged  the  land,  and  it  was  sold  by  the  sheriff'  under 
the  mortgage.  Held,  the  mortgagee  had  priority  over  the  creditors  of  the  testator,  who 
had  obtained  judgment  within  five  years  after  his  death  ;  and  he  was  not  bound  to  see  to  the 
appropriation  of  the  purchase-money  of  the  conveyance  to  A.  Cadbury  v.  Duval,  10  Barr, 
265;  Franklin,  &c.,  lb. 

Where  an  administrator  purchases  real  estate  with  funds,  a  moiety  of  which  belongs  to 
himself,  and  the  other  moiety  to  others,  in  an  action  of  ejectment  by  the  cestui  que  trust 
against  a  purchaser  of  the  land  from  the  administrator,  without  notice  of  the  trust,  the  pur- 
chaser is  entitled  to  be  reimlmrscd  the  one-half  of  the  purchase-money  paid  hy  him  before 
notice  of  the  trust,  unless  he  has  been  fully  compensated  to  the  extent  of  that  moiety  out 
of  the  rents  and  profits.  It  is  not,  however,  necessary  that  the  amount  should  be  tendered 
before  suit  brought.     Beck  v.  Uhrich,  4  Harris,  499. 

The  administrator,  who  was  a  co-defendant  in  the  ejectment  suit,  is  entitled  to  be  reim- 
bursed for  expenses  incurred  in  the  creation  of  the  trust,  and  advances  made  for  the  benefit 
of  the  trust.    lb. 

The  administration  account,  settled  after  the  suit  brought,  is  evidence  in  favor  of  the  de- 
fendants, to  sliow  the  amount  of  money  advanced  by  the  administrator  in  the  purchase  of 
the  land,  but  it  is  not  conclusive,    lb. 


CHAP.  XXV.] 


TRUSTEE;  RIGHTS,  ETC. 


345 


30.  AVhere  a  trustee  is  authorized,  generally,  to  sill  land  for  pay- 
ment of  debts,  a  purchaser  acquires  a  good  title,  although  more  was 
sold  than  was  necessary  for  this  object ;  more  especially  where  the  sale 
takes  place  under  a  decree  of  Chancery,  and  with  the  consent  of  parties 
interested.  J[ence,  under  such  circumstances,  a  purchaser  cannot  avoid 
the  bargain,  by  alleging  a  defect  in  the  title.(l) 

37.  joint  trustees  have  all  an  equal  interest  and  authority,  and  must 
join  in  conveyances  and  receipts.  But,  where  one  only  receives  money, 
the  others,  though  joining  in  a  receipt  for  it,  will  not  in  general  be  held 
accountable.  An  express  provision  is  almost  universally  inserted  in 
trust  deeds,  that  each  trustee  shall  be  accountable  only  for  such  sums  as 
actually  come  to  his  hands.(2) 

38.  The  general  rule  is,  that  a  trustee  shall  not  be  allowed  to  derive 
any  personal  advantage  from  his  trust.  Hence,  if  he  compound  a  debt 
due  from  the  estate,  the  profit  goes,  not  to  him,  but  to  the  cestui  que 
trust.  But  if,  in  good  faith  and  with  discretion,  he  release  a  debt,  he 
shall  not  sustain  any  loss  thereby. (3) 

39.  Where  a  trustee  commits  a  breach  of  trust,  he  will  be  held  strictly 
accountable  for  all  consequences.  Thus,  if  he  wrongfully  sell  the  estate, 
he  shall  answer  to  the  cestui  for  its  full  value.(a)  So,  trustees  who, 
without  sufficient  cause,  doubted  the  identity  of  their  cestui  que  trust, 
and,  in  breach  of  trust,  paid  over  the  trust  fund  to  others,  were  ordered 
to  make  good  the  same,  and  pay  the  costs  and  interest,  at  61  per  cent., 
— the  accounts  to  be  taken  with  rests.(i)  But  the  law  will  protect  a 
trustee  who  acts  according  to  his  best  judgment,  though  he  make  some 
trifling  mistakes  in  doubtful  matters.  So,  he  is  not  responsible  for 
wrongs  to  the  estate,  in  which  he  had  no  agency. (4) 

40.  One  trustee  is  liable,  for  concealing  the  wrongful  acts  of  another.(c) 

41.  A  trustee  in  possession  has  been  held  bound  to  account  for  all 
that  viigJit  have  been  received  from  the  estate.(5) 

42.  \Vhere  a  trustee,  authorized  to  sell  lands,  and  apply  the  pro- 
ceeds to  payment  of  debts  or  purchase  of  stock,  exchanges  them  for 
other  lands,  he  shall  account  for  the  full  value  of  the  lauds  ex- 
changed.(6) 

43.  It  has  been  intimated  in  England,  and  expressly  decided  in  Mas- 
sachusetts, that  a  cestui  que  trust  may  maintain  an  action  at  law  against 
his  trustee  for  breach  of  trust,  as  upon  an  implied  assumpsit.     Of  course, 


(1)  Spalding  V.  Shalmer,  1  Vern.  303 ;  Lut- 
wych  V.  Wiiiford,  2  Bro.  R.  248. 

(2)  Fellows  V.  Mitchell,  1  P.  "Wms.  81  ; 
Bartletl  v.  Hodfrson,  1  T.  R.  42 ;  Kip  v.  Den- 
iston,  4  .Tolm.  26 ;  Monell  v.  iloiiell,  5  John. 
Cha.  296.  See  Taylor  v.  Roberts,  3  Alab.  N. 
83. 

(3)  Robinson  v.  Pett,  3  P.  Wms.  251 ;  Pu- 
sey  V.  Ckmison,  9  S.  &  R.  204;  Forbes  v.  lloss, 
2  Bro.  130. 

(4)  Smith  V.  French,  2  Atk.  243 ;   1  Harr. 


&  G.  11;  Root  V.  Yeomans,  15  Pick.  488; 
Courtee  v.  Dawson,  2  Bland,  289 ;  Chase  v. 
Loekerman,  11  Gill  &  J.  185;  Rainsford  v. 
Rainsford.  Rice,  343;  Angell  v.  Dawson,  3 
Y.    &   Coil.    308;    Hester  v.    Wilkinson,    6 

Humph.  ;  Hutchins  v.  Hutchins,  6  Eng. 

L.  &  Equ.  41. 

(5)  Boardman  v.  Mosnian,  1  Bro.  68 ;  Rog- 
ers i;.  Rogers,  1  Paige,  188. 

(6)  Ringgold  V.  Ringgold,  1  Harr.  k  G.  11. 


(a)  It  has  been  recently  decided,  that  payment  to  one  of  two  trustees  binds  both.     Hus- 
band V.  Davis,  4  Eng.  L.  k  Equ.  342. 

ip)  The  cestui  may,  at  his  election,  reclaim  the  property;  or  claim  other  property  taken  in 
exchange.     Oliver  ?'.  Piatt,  3  How.  333.     Implied  notice  will  bind  the  purchaser.     lb.    Aud 
one  joint  owner  will  be  bound  by  notice  to  the  other.     Ibid. 
^   c)  See  Att'y  Gen.  v.  Holland,  2  Y.  &  Coll.  683 ;    Bayley  v.  Reea,  Holt  Eq.  80. 


V 


346 


TRUSTS— CESTUI  AND 


[CHAP.  XXY. 


in  England,  the  cestui  stands  on  the  footing  of  a  mere  simple  contract 
creditor.  So  a  cestui  que  trusty  after  the  death  of  the  party  who  declared 
the  trust,  may  maintain  a  suit  in  his  own  name  against  the  trustee,  if 
the  latter  refuse  to  pay  over.(l) 

44.  It  was  formerly  held,  that  a  trustee  could  not  be  allowed  any 
compensation  for  his  services.  This  rule  was  founded  upon  the  reasons, 
that  by  such  allowance  the  estate  might  be  exhausted  ;  that  it  was  im- 
possible to  fix  upon  a  fair  amount,  one  man's  services  being  worth  more, 
and  another's  less  ;  and  that  the  trustee  had  his  option,  whether  to  ac- 
cept or  refuse  the  office.(2)(a)  This  rule  seems  to  be  still  in  force  in 
Ohio,  and  in  New  York,(Z/)  it  has  been  held  doubtful,  whether  even  a 
positive  agreement  with  the  cestui  for  compensation,  made  after  creation 
of  the  trust,  is  binding.  But,  when  a  trust  is  undertaken  without  any 
consideration,  and  actually  commenced,  the  trustee  is  bound  to  proceed 
and  execute  it  with  the  same  diligence  and  good  faith  as  if  he  was  to  re- 
ceive compensation. (3) 

45.  But  where  the  party  creating  the  trust  directed  that  the  trustees 
should  be  con)pensated,  it  was  held,  that  such  order  should  be  carried 
into  effect ;  and  the  amount  of  compensation  was  referred  to  a  master 
to  settle.(4) 

46.  It  is  said,  the  general  practice  in  America,  and  especially  in  Mas- 
sachusetts, is  to  allow  commissions  to  trustees,  in  case  of  open  and  ad- 
mitted express  trusts,  unless  the  trustee  has  forfeited  them  by  gross 
misconduct.(5)  In  Massachusetts,  trustees  are  allowed  a  commission  of 
5  per  cent,(c)  and  the  allowance  thereof  will  not  prevent  that  of  specific 
charges  also.  In  such  case,  the  commissions  are  considered  as  a  com- 
pensation for  services  not  specially  mentioned  in  the  account.  But  a 
trustee  cannot  have  an  allowance  by  way  of  commission,  on  assuming 
his  of^ce.     In  Pennsylvania,  an  executor  is  always  compensated. (f/)    So 

(1)  Stuart  V.  Hellish,  2  Atk.  612  ;  Twitt  v. 
Cootzer,  1  Harr.  451 ;  Newhallv.  Wheeler,  1 
Mass.  198;  Giflford  v.  Manley,  For.  109  ;  Lyd- 
del  V.  Weston,  2  Atk.  19;  Gadsden  v.  Lord,  1 
Dess.  216. 

(2)  Treat,  of  Equ.  lib.  2,  ch.  7,  sec.  3.  See 
Gilbert  v.  Dyneley,  3  Mann.  &  G.  12. 


(3)  Walk.  Intro.  314  ;  Manning  v.  Manning, 
1  John.  Cha.  527 ;  Meacham  v.  Stearns,  9 
Paige,  398 ;  Iddings  v.  Bruer,  4  Sandf.  Cb. 
223;  Switzer  v.  Skiles,  3  Gilm.  529. 

(4)  Ellison  V.  Airey,  1  Ves.  112. 

(5)  Jenkins  v.  Eldridge,  3  Story,  325. 


(a)  Another  reason  assigned  is,  that  there  is  much  solicitude  and  vexation  in  most  trusts, 
which  cannot  be  compensated  by  money.     Barrel!  v.  Joy,  16  Mass.  228. 

(6)  After  the  estate  of  trustees  ceases  by  the  Rev.  Sts.  of  New  York,  on  the  cessation  of 
the  objects  of  the  trust,  they  have  no  longer  a  lien  on  the  land  for  any  unpaid  charges  and 
commissions.     Bellinger  v.  Shafer,  2  Sandf.  Cii.  293. 

A  trustee,  on  passing  the  trust  estate  to  a  new  trustee,  and  discharging  himselC  was  al- 
lowed commissions  on  stocks,  bonds  and  mortgages,  wiiich  he  conveyed  to  the  new  trustee 
in  specie,  as  they  had  remained  during  his  own  trusteeship;  also,  on  certain  houses  and 
land,  in  which  the  proceeds  ol  certain  choses  in  action  had  been  invested  by  a  former  trustee 
for  the  preservation  of  the  property,  and  which  were  held  to  be  personaltj'  in  equity.  De 
Peyster,  4  Sandf  Cii.  511. 

(t)  "  On  the  gross  amount  of  all  the  property  that  has  come  to  his  hands,"  is  the  expres- 
sion in  one  case,  (16  Mass.  221 :)  "on  net  income  from  real  and  personal  estate — income  re- 
ceived and  accounted  for,"  is  probably  the  more  correct  phrase,  used  in  another  and  later 
case.  2  Met.  422.  See  Kendall  v.  New  England,  &c.,  13  Conn.  383;  Mitchell  f.  Holmes, 
1  Md.  Ch.  287. 

{(i)  So,  two  and  a  half  per  cent,  commissions  were  allowed  on  a  sale  by  assignees  of  real 
estate,  assigned  for  the  benefit  of  creditors,  the  purchase-money  being  about  $44,000,  of  which 
$13,000  came  into  their  hands,  the  residue  continuing  a  lieu,  by  agreement  between  a  mort- 
gagee and  the  purchaser.     Shunk's,  &c.,  2  Barr,  304. 


CHAP.  XXV.] 


TRUSTEE;   RIGHTS,  ETC. 


847 


a  trustee  has  been  allowed  3  per  cent,  on  the  price  of  property  sold  by 
him  ;  in  Maryland,  5  per  cent.  So  in  Virginia,  North  Carolina,(a)  Mis- 
sissippi, and  sometimes  in  Kentuck3',  compensation  is  made.  In  Dela- 
ware, upon  a  sale  by  order  of  court,  the  allowance  is  not  over  6  per 
cent,  on  the  first  hundred  dollars,  nor  over  one  per  cent,  on  four  thou- 
sand dollars.  In  Alabama,  a  provision  in  the  deed  for  124-2  per  cent, 
will  not  avoid  it,  unless  proved  to  be  unconscionable.(r) 

47.  It  is  said,  that  the  cestui  que  trust  ought  to  save  the  trustee  harm- 
less, as  to  all  damages  relating  to  the  trust.  Upon  this  prineii)le,  a 
trustee  shall  be  liberally  allowed  all  reasonable  costs  and  charges  in- 
curred in  the  management  of  the  estate.  Thus,  if  be  bring  a  suit  to 
recover  the  land,  he  will  not  be  limited,  in  a  settlement  with  the  cesim\ 
to  the  taxed  costs,  but  will  be  allowed  the  expenses  actually  incurred 
in  the  suit.  So,  he  will  be  allowed  a  solicitor's  fee.  But  he  will  not 
be  allowed  ihe  expenses  of  actions  of  assault  and  battery  brought 
against  him,  thougli  arising  from  his  defence  of  the  estate.  Where 
he  has  advanced  money,  without  any  probabilit}'-  of  gaining  by  it  per- 
sonally, the  amount  shall  be  reimbursed  to  him  ;  and,  in  Pennsylvania, 
may  be  enforced  b}-  an  ejectment  and  conditional  verdict.  And  it  is 
now  usual  to  provide  expressly  for  the  reimbursement  of  all  costs  and 
expenses  incurred  in  executing  the  trust.  If  the  trustee  pay  off  an  in- 
cumbrance, he  may  reimburse  himself  from  the  property,  and  leave  the 
cestui  to  call  upon  the  grantor  on  bis  warranty,  instead  of  doing  it  him- 
self. Tuxes  paid  are  a  lien  upon  the  land,  and  may  be  paid  out  of  the 
trust  fund.(2) 

48.  In  Massachusetts  and  New  York,  a  trustee  will  not  be  allowed 
the  cost  of  pc/-;/ia/;e»i  improvements^  such  as  building,  clearing,  road- 
making,  &;c;(i)  and  regard  must  be  had  to  the  probable  duration  of  the 
trust,  in  determining  what  improvements  fall-  under  this  designation. 
If,  by  means  of  improvements,  the  rent  of  the  property  is  increased^ 
the  cestui  may  be  put  to  his  election,  between  allowing  the  charge  and 

And  the  trustee  shall  be  allowed  for 


not  receiving  the  increased  rent. 

(1)  Barrel!  v.  Joy,  16  Mas-s.  221;  Rathbun 
V.  Colloii,  1 5  Pick.  47 1 ;  Dixon  v.  Homer,  2 
Met.  420;  Jenkins  v.  KIdridge,  3  Story,  325; 
Hogaii  V.  Stone,  1  Ala.  (N.  S.)  496;  Slmrtliff  r. 
"Witlier.opoon,  1  Sm.  &  M.  613;  Wilson  v.  Wil- 
son, 3  Biiin.  560 ;  Piiiey  v.  Olemson,  9  S.  & 
R.  204;  Walker,  lb.  22.3;  Longley  v.  Hall, 
11  Pick.  120;  Marsteller,  4  Watts,  267  ;  Mil- 
ler V.  Uevorley.^,  4  Hen.  &  Mun.415;  Xathans 
V.  Morris,  4  Whart.  389;  Brown  v.  Wallace, 
2  Bland,  59;  Winder  r.  DiffenderlTer,  lb.  20? ; 
Tyson  v.  llollinpsworth,  lb.  332 ;  Andrews 
V.  Scotton,  lb.  072  ;  Dela.  St.  1843,  507  ;  Sher- 
rill  V.  Sliurtbrd,  6  Ired.  Eq.  228  ;  Phillips  v. 
Bustard,  1  B.  Monr.  349  ;  Warring;  v.  Uarrall, 
10  Gill  &  J.  126  ;  Donelson  v.  Posey,  13  Alab. 
752 ;    Sliunk's,    &c.,    2  Barr.   304.     See  the 


State  t>.  Piatt,  4  Harring,  154;  v.  Rog- 
ers, lb.:  Goodburn  v.  Stevens,  1  Md.  Ch. 
420;  Greening  v.  Fox,  12  B.  Mon.  187; 
Barry  V.  Barry.  1  Md.  Ch.  20;  Stehman,  S 
Barr,  413. 

(2)  Trott  V.  Dawson,  1  P.  Wms.  780; 
Green  v.  Winter,  1  John.  Cha.  29;  Freemau 
V.  Tompkins.  1  Strobb.  Equ.  53 ;  Gary  v. 
May,  16  Ohio,  66;  Amand  v.  Bradhurn,  2 
Cha.  Cas  128  ;  Watts  v.  Watts,  2  M'Cord's 
Cha.  82;  7  Bro.  Pari.  266;  Pierson  v.  Thomp- 
son, 1  Kdw.  Cha.  212;  Addis  v.  Clement,  2 
P.  Wms.  455 ;  Murray  v.  DeRotteniiam,  & 
John.  Cha.  62;  Dil  worth  v.  Sinderling,  1  Binn. 
495  ;  Jones  v.  Stockett,  2  Bland,  417  ;  Green 
V.  Putney,  1  Md.  Ch.  202;  Altimusi'.  Elliott, 
2  Barr,  62. 


(a)  Where  a  father  made  a  conveyance  of  land  and  negroes  to  one  of  his  sons,  to  be  man- 
aged under  the  direction  of  that  son,  in  trust  that  ho  would  apply  the  proceeds  to  tiie  support 
of  the  father  and  his  family  during  the  father's  lifetime,  and  after  his  death  sell  the  property 
and  divide  the  proceeds  among  his  heirs  and  distributees ;  held,  the  son  was  entitled  to  a 
reasonable  compensation  for  his  care  and  trouble.     Raiford  i'.  Raiford,  6  Ired.  Eq.  490.. 

{b)  Otherwise  iu  Pennsylvania.     Dilworth  v.  Sinderling,  1  Binn.  495. 


348 


TRUSTS— CESTUI  AND 


[CHAP.  XXV. 


reasonable  re/iatVs ;  but  not  for  pulling  doAvn  and  rebuilding.^  So,  it 
has  been  held  in  New  York,  that,  where  lands  are  purchased  in  trust, 
with  the  money  of  a  wife,  the  trustee,  whether  the  husband  or  a  stranger, 
shall  be  allowed  for  permanent  improvements.  So,  where  a  person  hold- 
ing land  in  trust,  with  a  power  to  sell,  materially  improves  the  estate, 
un'der  a  belief  honestly  entertained,  with  reasonable  grounds  for  that 
belief,  that  he  is  the  owner  of  the  land,  and  the  amount  received  upon 
the  sale  is  increased  in  consequence  of  such  improvements,  he  is  enti- 
tled to  retain  such  excess  for  his  own  use,  but  no  more.  But  where  the 
father  of  beneficiaries,  with  consent  of  the  trustees,  made  permanent 
improvements  on  the  land,  while  their  tenant;  the  trust  containing  no 
authoritv  for  the  same ;  held,  no  allowance  could  be  made  for  the  im- 
provements, as  against  the  beneficiaries  and  those  claiming  under  them. 
The  value  of  improvements  is  estimated  by  their  cost.(i) 

49.  The  policy  of  the  law  requires,  that  the  relation  of  trustee  and 
cestui  should  be  guarded  with  vigilance,  and  contracts  between  them 
scrutinized,  that  no  injustice  may  be  done  the  cesiui.{2) 

50.  Upon  this  principle  is  founded  the  general  rule,  that  a  trustee 
shall  not  be  allowed  to  purchase  the  trust  property  for  his  own  benefit, 
either  directly,  or  through  an  agent.  It  is  said  to  be  a  plain  point  of 
equity,  and  a  principle  of  clear  reasoning,  that  he  who  undertakes  to  act 
for  another  in  any  matter  shall  not,  in  the  same  matter,  act  for  himself, 
and  make  the  business  an  object  of  interest.  He  is  not  acting  with 
that  want  of  interest,  that  total  absence  of  temptation,  that  duty  im- 
posed upon  him,  that  he  shall  gain  a  profit.  Hence,  in  whatever  shape 
a  profit  accrues  to  the  trustee,  whether  by  management  or  good  fortune, 
it  is  not  fit  that  benefit  should  remain  in  him.  It  ought  to  be  commu- 
nicated to  those  whose  interests,  being  put  under  his  care,  afforded  him 
the  means  of  gaining  that  advantage.  He  takes  the  land,  clothed  with 
tha  same  trusts  as  it  was  liable  to  in  his  hands,  previous  to  the  sale. 
The  principle  is  sometimes  said  to  be  universal,  subject  to  no  qualifica- 
tions or  exceptions;  and  sometimes,  though  not  universal,  a  general 
one.  It  applies  not  merely  to  trustees  technically  so  called,  but  to  ju- 
dicial officers^  and  all  persons  concerned  in  disposing  of  the  property  of 
others,  such  as  attorneys,  commissioners,  sheriffs,  &c.(3)(a) 


(1)  Williamson  i;.  Seaber,  3  Y.  &  Coll.  717  ; 
Bridge  v.  Brown,  2  T.  &  Coll.  Cha.  181; 
Ratlibun  I'.  Colton,  15  Pick.  471;  Trustees, 
&c.  V.  Jaqiies,  1  John.  Cha.  450  ;  Bellinger  v. 
Shafer,  2  Sandf.  Cha.  293  ;  Pratt  v.  Thornton, 
28  Maine,  355. 

(2)  Ringgold  v.  Ringgold,  1  Harr.  &  G-. 
11. 

(3)  "Whichcote  v.  Lawrence,  3  V"es.  jr.  740  ; 
Hayward  v.  P]llis,  13  Pick.  272;  Howell  v. 
Baker,  4  John.  Clia  120;  Voorliees  v.  Stoot- 
hof;  6  Ualst.  145  ;  Turner  i'.  Bouchell,  3  Har. 
&  J.  99;  Davis  v.  Simpson,  5,  147  ;  1  Mon. 
44;  Bruch  v.  Lantz,  2  Rawle,  392  ;  2  Whart. 
53;  Misso.  St.  425;  1  Ky.  Rev.  L.  623; 
■Scott  V.  Davis,  4  My.  &  C.  87  ;  Jones  v. 
Thomas,   2  Y.   &  Coll.  498  ;    Williamson  v. 


Seaber,  3  lb.  717  ;  Brackenridge  v.  Holland, 
2  Blackf  380  ;  Saltmarsh  v.  Beene,  4  Port. 
283;  Williams  v.  Powell,  1  Ired.  Equ.  460; 
Field  V.  Arrowsmith,  3  Humph.  442  ;  Ely  v. 
Horine,  5  Dana,  404;  Bowlings.  Dobyns,  lb. 
445  ;  Van  Eps  v.  Van  Eps,  9  Paige,  237  ; 
Torrey  v.  Bank,  &c.,  lb.  649  ;  Kerr  ii.  Murphy, 
2  Miles,  157  ;  Small  v.  Jones,  1  Watts  &  S. 
136 ;  Campbell  i;.  Pennsylvania,  &c.,  2  Whart. 
53;  Thorp D.McCullum,  1  Gilm.614;  Bank,&c. 
Torrey,  7  Hill,  260  ;  Slade  v.  Van  Vechten,  11 
Paige,  21;  Bell  v.  Welch,  2  Gill.  163  ;  Iddings 
V.  Brueu;  4  Sandf.  Cha.  223  ;  Rathbun  v. 
Rathbun,  6  Barb.  98  ;  Pratt  v.  Thornton.  28 
Maine,  355;  Conger  ii.  Ring,  11  Barb.  356; 
Jenkins  v.  Eldridge,  3  Story,  181 ;  Michael 
V.  Michael,  4  Ired.  Equ.  349. 


(a)  Thus,  counsel  consulted  respecting  a  title  to  land  cannot  buy  in  an  outstanding  ad- 
Terse  claim,  and  set  it  up  against  his  client.  Hackenbury  v.  Carlisle,  5  Watts  &  S.  348. 
Au  action  was  brought  against  A,  an  administrator,  for  his  own  benefit,  but  in  the  name  of 


CHAP.  XXV.]  TRUSTEE;  RIGHTS,  ETC.  349 

51.  Tlic  above-named  principle  seems  to  have  been  limited  in  some 
cases  to  a  purchaser  from  an  infant  cestui  que  trust.  But  this  restriction 
is  !io\v  done  away ;  and,  although  the  ceslui  be  of  age,  the  transaction 
morally  fair  and  lionest,(rt)  a  higher  price  i)aid  by  the  trustee  than  any 
one  else  woLdd  give,  the  estate  taken  at  an  ap[)raisenient  or  in  the  name 
of  a  third  person;  yet,  upon -the  ground  of  general  incon^vjinience,  the 
transaction  may  be  set  aside  by  the  cestui.  The  trustee  purchases  sub- 
ject to  that  equity.(l) 

52.  But,  where  the  estate  is  sold  under  a  decree  in  Chancery,  by  an 
open  bidding  before  the  master ;  or  where,  in  case  of  a  trust  for  credit- 
ors, a  majority  of  them  assent ;  the  purchase,  it  seems,  will  be  sustained. 
In  Pennsylvania,  the  circumstance  that  a  sale  is  a  judicial  one  is  held 
to  make  no  ditl'erence.  So,  in  South  Carolina,  if  made  at  the  instance 
of  the  trustee,  it  is  held  to  be  his  sale.  And  the  mere  fact  of  a  public 
sale  does  not  make  the  sale  valid.  So  where,  in  a  sale  made  by  exe- 
cutors, one  of  them  became  a  joint  purchaser  and  afterwards  sole 
owner;  held,  although  the  sale  was  ratified  by  the  heirs  and  devisees, 
the  land  was  still  liable  to  be  taken  by  creditors.(2) 

53.  If  the  property  purchased  by  the  trustee  is  a  lease,  and  he  re- 
news it  in  his  own  name,  the  renewal  shall  be  for  the  benefit  of  the 
cestui.{b)     So,  if  a  trustee  buys  in  an  incumbrance   upon  the  estate, 

(1)  Campbell  v.  Walker,  5  Ves.  680.  i  678  ;  Bruch  v.   Lantz,    2    Rawle,  392.     See 

(2)  1  Cruise,  358;  Wifjglns,  1  Hill's  Cha.  Pitt  v.  Pelway,  12  Ired.  69;  Haywood  v. 
354;  (\impbellt'.  Pennsylvania,  &c.,  2  Whart.    Eiisley,  8  Humph.  460. 

53  ;  Whelpdale  v.  Cookson,  1  Ves.  9  ;  5  Ves.  1 

B.  A  suffered  a  judgment  to  be  rendered  against  him,  and,  in  the  levy  of  the  execution 
upon  the  intestate's  estate,  acted  botii  as  defendant  and  agent  of  B.  Held,  the  proceedings 
were  illegal  and  collusive,  and  that  the  levy  was  void  as  against  a  subsequent  execution 
in  lavor  of  C.  Goddard  v.  Divoli,  1  .Met.  413.  And  the  principle  applies  to  public,  as  well 
as  private  trusts;  as  where  a  member  of  the  legislature  sought  to  obtain  a  title  Iroin  the 
land-office,  after  the  claimant  had  petitioned  for  confirmation  of  his  right.  O'Xeill,  2  Bland, 
151.  It  has  been  enforced  in  a  late  case  even  against  a  liigh  dignitary  in  the  church.  A 
statute  authorized  a  rector,  with  consent  of  the  bishop,  to  raise  money  by  an  annuity  for 
the  rectory-house.  The  bishop  advanced  the  money,  and  obtained  a  grant  of  the  annuity, 
charged  on  the  living.  Held,  the  flroceeding  was  entirely  void.  Greeulow  v.  King,  3 
Beav.  49. 

The  right  to  avoid  a  purchase  of  the  trust  property  by  a  trustee  is  not  personal  to  the 
beneficiary,  but  passes  to  his  representatives;  and  creditors,  or  a  7-eceiver  i'or  their  benefit, 
may  avail  themselves  of  it.     Iddings  v.  Bruen,  4  Sandf.  Ch.  223. 

In  Massachusetts,  partition  may  be  made  between  a  trustee,  attorney  or  guardian,  and  the 
party  connected  with  him  in  that  relation.     St.  1853,  993. 

It  is  said,  a  court  of  equity  will,  under  no  circumstances,  p^'rmit  a  trustee  to  secure  a  debt 
of  his  own,  not  secured  by  the  tru.st,  by  forming  a  combination  with  one  claiming  adversely 
to  tlie  cestuis  que  trust.     Irwin  v.  Harri.s,  6  Ired.  Kq.  215. 

"Where  a  trustee  denies  a  trust,  and  claims  liie  property  as  his  own,  aud  the  trust  is  estab- 
lished by  parol  evidence,  he  cannot  set  up  a  bond  to  himself  from  the  creator  of  the  trust 
extending  the  times  of  payment.     Tritt  v.  Crotzer,  1  Harris,  451. 

(a)  The  reason  of  the  rule  is  said  to  be,  not  that  there  is,  but  there  7nay  be,  fraud.  Broth- 
ers V.  Brothers,  7  Ired.  Equ.  150. 

(b)  A  joint  lessee  will  also  be  held  responsible  as  a  trustee,  in  case  of  renewal.  Burrell  v. 
Bull.  3  Sandf  Ch.  15. 

So  a  partner  will,  in  respect  to  a  renewed  lease,  be  a  trustee  for  the  firm,  where  he  would 
not  be  so  in  respect  to  a  purchase  of  the  reversion.     Anderson  v.  Lemon,  4  Sandf.  552. 

A  and  B  held  a  lease,  fixtures,  stock,  Ac,  in  common,  and  A  carried  on  the  business  of  a 
refectory.  C  and  D  held  mortgages  oq  A'a  interest,  and,  not  feeling  secure,  agreed  to  pay 
the  arrears  of  rent  if  immediate  possession  were  given,  which  was  done,  and  they  also 
agreed  to  protect  the  interests  of  B.  They  did  not  pay  the  rent,  but  suflered  a  sale  under 
a  distress,  purchased  the  fixtures,  stock,  iic,  at  the  sale,  and  continued  tlie  bu.siness.  It 
having  been  arranged  that  C  should  procure  a  renewal  of  the  lease,  for  the  common  benefit  of 


350 


TRUSTS— CESTUI  AND 


[CHAP.  XXV. 


he  can  hold  it  onlj'  as  security  for  the  sum  paid  by  hira,  with  intcr- 
est.(i) 

54.  If,  after  purchasing  the  estate,  the  trustee  resells  it  at  an  advance, 
more  especially  if  in  pursuance  of  a  previous  bargain,  the  cestui  may 
afl&rm  the  sale,  and  claim  the  profits.  But,  in  such  case,  the  trustee 
shall  be  allowed  money  paid  to  his  agent  for  making  the  purchase.  So, 
where  the  holder  of  a  mortgage  assigned  it  in  trust,  for  the  benefit  of 
children,  and  afterwards  accepted  a  reassignment  of  it  fiom  the  assignee 
in  trust  ;  held,  he  was  accountable  as  a  trustee  to  the  cestui  que  trusts. 
So,  where  a  trustee  became  the  owner  of  land,  on  which  was  a  mort- 
gage belonging  to  the  trust  estate,  cancelled  the  mortgage  on  the  record, 
sold  one-third  of  the  same  land,  taking  back  a  mortgage  thereon  for  the 
same  amount  as  that  which  he  had  cancelled,  and  executed  a  declara- 
tion of  trust,  acknowledging  that  he  held  it  in  trust,  in  lieu  of  the 
one  cancelled,  but  the  land  covered  bj^  this  substituted  mortgage  was 
greatly  inadequate  security  ;  on  a  bill  by  the  cestui  que  trust,  setting 
forth  that  these  acts  of  the  trustee  were  done  without  his  knowledge  or 
consent,  and  that  the  original  bond  and  mortgage  had  never  been  paid, 
a  decree  was  made,  establishing  the  original  bond  and  mortgage,  as 
valid  existing  securities,  securing  the  rights  of  subsequent  bona  fid^e 
mortgagees,  and  directing  a  sale  of  the  premises,  and  payment  of  any 
deficiency  by  the  trustee.  So,  where  a  trustee  has  borrowed  money, 
and  with  it  purchased  other  property,  and  added  it  to  the  trust,  and  re- 
paid the  borrowed  money  out  of  the  proceeds  and  profits  of  the  trust 
property :  the  property  thus  purchased  will  belong  to  the  beneficiaries 
in  the  trust.(2) 

bb.  One  to  whom  a  legacy  is  given,  coupled  with  a  trust,  is  charge- 
able with  the  latter,  and  cannot  legally  deal  with  the  cestui.{^) 

56.  An  administrator  purchases  land,  sold  upon  ajudgment  in  favor 
of  his  intestate.     Held,  he  took  it  in  trust.(4) 

57.  So,  if  an  executor  purchase  the  land  of  his  testator  at  sheriff's 
sale,  recede  from  his  purchase,  and  the  land  be  resold,  he  is  chargeable 
for  the  highest  price.(5)(a) 


(1)  Killick  V.  Flexnoy,  4  Bra  R.  IGl ; 
Quackenbush  v.  Leonard,  9  Pai>e,  3B4; 
Webb  V.  Sugar,  2  Y.  &  Coll.  247  ;  Tanner  v. 
Elwortbv,  4  Beav.  487  ;  Waters  v.  Bailev,  2 
T.  &  Coll.  Clia.  219. 

(2)  Wliichcote  v.  Lawrence,  3  Ves.  jr.  740; 
Hayward  V.  Ellis,  13  Pick.  272;  Wasson  v. 
English,  13  Mis.  176;  Gilchrist  v.  Stevenson, 


9  Barb.  9  ;   Stunrt  v.  Kissam,  2,  498;  Butler 
V.  Hicks,  11  S.  &  M.  78. 

(3)  xMcCants  v.  Bee,  1  McCord's  Cha.  383. 

(4)  Fellows  V.  Fellows,  4  Cow.  682.  See 
Darcusu.  (.rump,  6  B.  Mon.  3G3  ;  Painter  v. 
Henderson,  7  Barr,  48. 

(5)  Guier  v.  Kelly,  2  Bin.  294. 


B,  C  and  D,  C  procured  the  renewal  in  his  own  name,  and  then  he  and  D  separately  sold 
their  interests  in  the  whole  to  ]*],  who  took  possession  of  the  whole  concern,  and  kept  B 
out  of  possession.  Held,  in  a  suit  by  B,  that  L  and  D  were  bound  to  account  to  him  for  his 
share  of  the  profits  previous  to  the  sale  to  E,  and  for  his  share  of  the  purchase-money,  de- 
ducting his  sluire  of  what  they  had  paid.     Burrell  v.  Bull,  3  Sandfi  Ch.  15. 

(a)  In  Illinois,  it  is  provided  liy  statute,  that,  if  the  interest  of  an  estate  require  that  land 
sold  on  execution  be  purchased  by  the  executor,  he  may  buy  it,  and  hold  it  as  assets.  St. 
1841,  168.  Where  an  executor  jjurchases  land,  and  takes  a  conveyance  to  t!ie  estate,  this 
is.  prima  facie,  a  declaration  of  trust,  and  the  land  will  be  subject  to  division  among  the 
heirs.     Garrett  v.  Garrett,  1  Strobh.  Eq.  96. 

A  purchase  by  an  executor,  at  an  orphans'  court  sale  for  payment  of  debts,  is  voidable 
by  the  devisee  or  heir,  even  though  the  purchaser  did  not  interfere  in  procuring  tlie  order 
to  be  made,  but  the  petition  was  presented,  the  bond  given,  and  the  sale  made  by  another 
executor,     Beeson  v.  Beeson,  9  Barr,  279. 


CHAP.  XXV.] 


TRUSTEE;  RIGHTS,  ETC. 


.1 


68.  An  attorucy,  employed  to  collect  or  foreclose  a  mortgage,  takes 
a  conveyance  to  himself  of  the  equity,  instead  of  foreclosing.  Held, 
the  estate  was  subject  to  the  trust  in  the  hands  of  his  heirs  ;  and  that 
they  were  bound  to  reconvey,  on  })ayrnent  of  the  amount  paid  l<jr  the 
equity,  and  of  the  trustee's  claim  for  his  services,  together  with  the 
value  of  improvements  made  by  themselves  before  notice  onhe*trust.(l) 
So,  where  a  bank  is  bound  to  pay  oil"  and  discharge  a  mortgage,  so  as 
to  relieve  the  pro{)erty  of  a  third  person  from  sale  under  a  decree  of 
foreclosure,  and  the  cashier  attends  the  sale  as  agent  for  the  bank,  and 
bids  off  the  property  on  his  own  account;  held,  he  must  in  equity  be 
regarded  as  having  purchased  for  the  benefit  of  the  bank,  and  that  the 
purchase  was  improjKT,  and  should  be  set  aside.(2)  So,  a  purchase, 
by  the  general  agent  of  heirs,  of  the  land  of  their  ancestor,  Irom  the 
vendee  at  a  tax  sale,  instead  of  redeeming  the  land,  inures  to  the 
benefit  of  the  heirs.(3) 

59.  Executors,  having  authority  to  sell,  sold,  witli  the  intent  of 
repurchasing  the  estate  from  the  purchaser.  Held,  the  sale  was 
voidable.(4) 

60.  Devise  of  land  mortgaged,  and  a  direction  to  the  executors  to 
redeem  the  mortgage.  Though  having  assets,  the  executors  tocdc  an 
assignment  of  the  mortgage.  Held,  they  should  hold  it  in  trust  for  the 
devisee,  whose  right,  it  seems,  would  be  barred  only  by  the  lapse  of 
twenty  years.(5) 

61.  Land  was  sold  upon  execution.  The  plaintiff  directed  his  attor- 
ne3',  A,  (o  bid  it  off.  A  confessed  that  he  had  done  so,  and  said  that 
the  deed  would  be  made  to  the  plaintiff,  and  that  he  had  made  a  tern- 
porary  sale,  to  save  the  expense  of  advertising,  and  would  receipt  the 
execution,  when  paid.  The  sale  was  made  on  a  stormy  dav,  and  only 
A  and  the  ofllcer  were  present.  A  pui'chased  the  land,  and  afterwards 
conveyed  to  B,  who  had  notice  of  the  facts.  The  land  was  worth 
$2,000,  while  only  $80  was  due  on  the  execution.  Held,  it  was  doubt- 
ful whether  the  plaintiff's  attorney  could,  in  any  case,  legally  purchase 
land  Sold  on  execution,  inasmuch  as  he  has  the  whole  control  of  the 
proceedings,  and  therefore  great  opportunity  for  unfairness;  and  that 
in  this  case,  the  judgment  debtor  might  redeem,  on  payment  of  the  sum 
due  upon  the  execution  and  interest,  the  amount  p.dd  to  discharge  in- 
cundjrances  b}'  A  or  B,  and  the  cost  of  improvements  made  bv  the 
latter.(6) 

62.  A  trustee  agreed  to  purchase  a  farm  for  the  cestui  from  the  pro- 
ceeds of  trust  property.  He  bought  the  farm,  and  gave  a  bond  and 
mortgage  for  the  purchase-money,  but  refused  to  pay  them  when  due, 
and  procured  a  foreclosure  and  sale  by  the  mortgagee,  at  a  loss  of 
$4,000.     Held,  he  was  liable  for  the  loss.(7) 

63.  One  of  several  remainder-men  purchased  the  particular  estate, 
avowedly  for  all.     Held,  a  trust  for  the  others.(8)(a) 


(1)  Giildintrs  v.    Eastmnn,    5   Paipe, 
See  Davinney  v.  Morri.s,  8  Wntts,  314. 

(2)  B.iiik,  kc  V.  Torrey,  7  Hill,  2G0. 

(3)  Mvers.  2  Barr,  4G3. 

(4)  Deii  V.  McKniirlit,  6  Halst  385. 


561. 


(5)  Jenison  v.  Hapgood,  7  Pick.  1. 
(G)  Howell  V.  Baker,  4  John.  Clin.  118. 

(7)  Green  v.  Winter,  1  Jolm.  Clin.   27. 

(8)  Anderson  v.  Bacon,  1  Mar.  51. 


(a)  A,  a  tenant  in  ponnnnon,  released  hi.s  rijjlit  to  B.     C  was  in  posses.sion,  claiminfr  under  a 
sale  for  taxes.     He  was  also  a  tenant  in  common,  and  agent  for  A  and  tlie  other  proprietors. 


852 


TEUSTS— CESTUI  AND 


[CHAP.  xxy. 


6'S  a.  Where  an  agent,  to  sell  a  mortgage,  represented  to  his  principal 
that  a  certain  price  was  the  most  he  could  obtain  for  it,  when  it  was  of 
greater  value,  and  it  was  sold  for  that  price  to  the  agent ;  held,  the  re- 
dress of  the  principal  was  not  an  allegation  of  fraudulent  representa- 
tion, but  a  call  to  annul  the  assignment,  or  account  to  him  for  its  true 
value. (1)  So,  if  heirs  elect  to  set  aside  purchases  made  by  executors, 
administrators,  or  guardians,  at  their  own  sale,  they  must  go  into 
equity.(2) 

6-i.  The  cestui  que  trust  "  must  not  lie  by  to  speculate  upon  events," 
but  disaffirm  the  sale  in  a  reasonable  time;  and  what  is  reasonable 
time,  depends  on  the  circumstances  of  each  case.  The  sale  is  not  void, 
but  only  voidable  at  his  election ;  and,  the  rule  being  adopted  solely 
for  his  benefit,  neither  remainder-men,  strangers,  nor  parties  to  the 
deed,  nor  those  claiming  under  them,  can  raise  the  objection,  nor  will 
the  deed  be  set  aside  on  application  by  or  on  behalf  of  the  trustee 
himself(3) 

65.  Upon  the  filing  of  a  bill  in  Chancery,  to  obtain  a  resale  of  the 
premises,  it  Avill  be  referred  to  a  master  to  settle  whether  such  resale 
would  be  beneficial  to  the  plaintiff.  And,  if  such' resale  takes  place, 
and  no  advance  is  made  upon  the  sum  paid  by  the  trustee,  he  will  be 
held  to  complete  the  purchase.(4:) 

66.  Where  there  are  joint  trustees,  a  sale  of  the  trust  property  by 
one  to  another  is  illegal ;  and  the  latter  is  liable  for  any  neglect  on  the 
part  of  the  former  to  pay  over  the  purchase-money,  or  apply  it  to  the 
purposes  of  the  trust.  The  purchaser  is  also  answerable  for  all  profits 
arising  from  the  property.(5) 

67.  But  where  an  heir  or  devisee,  being  one  of  several,  becomes  con- 
structively charged  with  a  trust,  but,  having  no  notice  of  it,  purchases 
the  shares  of  the  others,  he  shall  hold  the  latter  discharged  of  the  trust, 
though  his  own  share  remains  charged. (6) 

68.  Although  a  purchase  by  the  trustee  of  the  trust  property  is  a 
transaction  of  great  hazard  and  delicacy,  to  be  watched  with  the  utmost 
diligence,  yet  such  purchase  may  be  valid,  provided  it  appears,  after  the 
most  careful  investigation,  that  there  was  a  distinct  and  clear  contract, 
understood  by  the  cestui ;  and  that  on  the  part  of  the  trustee  there  was 
neither  fraud,  concealment,  nor  any  advantage  taken  of  his  situation, 
as  such. 

69.  Thus,  a  trustee  for  payment  of  debts  purchased  the  estate  as 
agent  for  his  father,  both  being  creditors  and  partners,  and  the  cestui 
had  full  knowledge,  and  took  the  sole  management  of  the  sale,  making 


(1)  Thompson  v.  Hallet,  26  Maine,  141. 

(2)  "Wortliy  v.  Johnson,  8  Geo.  236. 

(3)  Tliorp  V.  McCullum,  1  Gilm.  614 ; 
■Worth}'  V.  Johnson,  8  Geo.  236  ;  Pitt  v.  Pet- 
way,  12  Ired.  69;  M'Kinley  v.  Irvine,  13 
Ala.  681 ;  Ward  v  Smith,  3  Sandf.  Cha.  592; 
Painter  v.  Henderson,  7  Barr,  48 ;  Costeris, 
&c.,  1  Har.  292;  Woelhers,  &c.,  2  Barr,  71. 

(4)  Campbell  v.  Walker,  5  Ves.  678 ;  Ball 


V.  Carew,  13  Pick.  31;  Den  v.  McKnight,  6 
Halst.  385  ;  Davis  v.  Simpson,  5  Har.  and  J. 
147  ;  Lacey,  6  Ves.  625 ;  Thorp  v.  M'Collum, 
1  Gilm.  614. 

(5)  Ringgold  v.  Same,  1  Har.  &  Gill,  11 ; 
Hulbert  v.  Grant,  4  Mou.  582 ;  Case  v.  Abeel, 
1  Paige,  393. 

(6)  Giddings  v.  Eastman,  5  Paige,  561. 


Held,  he  must  be  considered  a  trustee  for  A  and  B,  and  was  bound  to  convey  to  them, 
upon  receiving  the  amount  of  his  expenditures,  and  a  fair  compensation  for  his  services. 
Baker  v.  Whiting,  3  Sumn.  476. 


CHAP.  XXV.] 


TRUSTEE;  RIGHTS,  ETC. 


853 


surveys,  settling  the  particulars,  prices,  &c.     Held,  the  purchase   was 
good.(l) 

70.  So,  a  trustee  may  validly  ))urcliai<e  directly  from  the  cestui^  pro- 
vided he  practice  no  unfairne.ss.  By  such  a  contract,  he  in  fact  removes 
liimself  from  the  character  of  a  trustec.(2)  And,  after  the  trust  ceases, 
the  trustee  may  always  make  a  valid  purchase.(a)  — 

71.  A  mortgages  land  for  security  to  B,  his  suret3^  A  then  trans- 
fers to  C,  a  creditor,  all  his  remaining  interest  in  the  land,  without  the 
knowledge  and  not  for  the  account  of  B,  and  afterwards  transfers  such 
interest  to  \^.  Held,  in  the  absence  of  all  fraud,  B's  purchase  was  not 
invalid,  as  made  by  a  trustee;  for,  by  A's  transfer  to  C,  he  had  ceased 
to  stand  in  that  relation.(3) 

72.  The  rule  against  a  trustee's  purcliasing  does  not  prevent  him 
from  occupying. {4:) 

72  a.  A  cestui  que  trust,  knowing  of  a  purchase  of  tRe  trustee,  and  of 
his  right  to  avoid  it,  may  ratify  it,  by  assenting  to  the  application  of 
the  purchase- money  to  his  use.(5) 

72  b.  ^Vhere  a  trustee  becomes  a  purchaser  at  the  sale  of  a  co-trustee, 
it  is  necessar}'',  in  order  to  render  the  sale  utterly  void  by  reason  of  the 
fraudulent  acts  of  the  seller,  to  connect  the  purchaser  with  them. (6) 

72  c.  Where  land  is  sold  under  a  testamentary  power  b}^  trustees,  an 
executor,  who  is  not  one  of  the  trustees,  may  purchase.(7) 

72  d.  A  purchase  of  land  by  an  administrator,  at  a  sale  of  the  estate 
of  his  intestate,  if  not  actually  fraudulent,  cannot  be  avoided  by  the 
herrs,  unless  suit  be  brought  within  twenty-one  years  after  the  sale,  or 
within  ten  jears  after  the  heirs  attain  their  majority,  if  they  were  then 
minors.(8) 

72  e.  If  the  rule,  that  a  trustee  to  sell  cannot  himself  become  the  pur- 
chaser, is  applicable  to  an  administrator,  licensed  to  sell  real  estate, 
and  purchase  through  a  third  person,  such  purchase  is  voidable  only 
by  creditors,  or  other  persons  interested,  while  the  estate  remains  in  the 
hands  of  such  administrator  ;  and  not  asagainst  a  bona  fide  purchaser,  for 
valuable  consideration,  without  notice.(i^*) 

72  /  Although  good  faith  must  be  strictly  enforced  against  a  trus- 
tee, and  he  may  not  be  allowed  to  deal  with  the  property  for  his  own 
benefit,  yet,  wliere  the  trustee  had  substituted  a  new  security,  by  way 
of  mortgage,  in  the  place  of  a  former  mortgage,  upon  certain  propertj^, 
but  not  including  the  whole  which  was  covered  by  the  former  mortgage; 
and  there  was  no  gain  made,  or  intended  to  be  made,  by  the  trustee ; 
and,  so  far  as  appeared,  the  new  security  would  have  been  deemed  suf- 


(1)  Coles  V.  Trecothick,  9  Ves.  234  ;  Morse 
V.  lloyal,  12  Ves.  355  :  Xaylor  v.  Winch,  1 
Sim.  &  Mu.  555;  McCains  v.  Bee,  1  M'Cord's 
Clia.  389.  See  Mardock,  2  liland,  467  ;  Ken- 
nedy V.  Keiitredy,  2  Alab.  (N.  S.)  572;  Allen 
V.  Bryant,  7  Ired.  Equ.  276;  Marshall  v.  Ste- 
phens, 8  Humpli.   ]59. 

(2)  Sanderson  v.  Walker,  13  Ves.  601. 


(3)  Ball  V.  Carew,  13  Pick.  28. 

(4)  Root  u.  Yeomans,  15  Pick,  495. 

(5)  Beeson  v.  Beeson,  9  Barr,  279. 

(6)  Beeson  v.  Beeson,  9  Barr,  279. 

(7)  Cudburryi;.  Duval,  10  Barr,  265. 

(8)  Musselman  v.  Eshitmnn,  10  Barr,  394. 

(9)  Robbins  v.  Bates,  4  Cusii.  104. 


(a)  So  a  trustee  may  become  purchaser,  at  a  sale  made  by  virtue  of  proceedings  prior  to 
his  becoininji  sucii.  Thus,  the  assijjnces  of  an  insolvent  may  purchase  land  sold  on  execu- 
tion under  a  mortgage  prior  to  the  assignment.     Fisk  v.  Larlier,  6  Watts  &  y.  IS. 


Vol.  I. 


23 


554 


TRUSTS— CESTUI  AND 


[CHAP.  XXV. 


ficient  at  the  time,  and  it  was  accepted  by  the  cestui  que  trust,  who  was 
competent  to  judge  of  its  value;  the  transaction  was  not  deemed  to  be 
void.(l) 

72  g.  The  purchase  of  trust  property,  by  a  trustee,  through  a  secret 
agent,  does  not,  of  itself,  render  the  sale  utterly  void,  unless  used  as  a 
means  of  deceiving  or  misleading  the  cestui  que  irust.{2) 

72  h.  Where  one  of  two  partners,  in  his  own  name,  and  with  his  own 
funds,  purchased  in  fee  the  premises  on  which  the  firm,  under  a  lease, 
was  conducting  its  business,  (after  the  term  limited  for  the  partnership 
had  expired,  but  before  an  actual  dissolution,)  such  purchase  being 
made,  not  fraudulently,  but  without  the  consent  or  knowledge  of  his 
CO  partner,  and  the  purchase  of  the  real  estate  not  being  any  part  of 
their  ordinary  business;  held,  the  latter  could  not,  at  his  election, 
claim  that  the  premises  were  partnership  property .(3) 

72  i.  Two  partners  had  been  conducting  business,  on  leased  premises. 
The  term  for  their  connection  had  expired,  but  the  business  was  con- 
tinuing, with  a  view  to  arrange  a  further  term.  One  of  them,  with  the 
other's  knowledge,  was  treating  with  the  owners  of  the  reversion  for 
its  purchase,  professedly  intending  the  premises  for  the  use  of  the  firm, 
if  it  continued,  and  consulting  his  co-partner  as  to  the  price  demanded. 
The  latter,  privately,  without  the  knowledge  of  the  former,  bought  the 
premises  with  his  own  means,  and  in  his  own  name,  and  then  refused 
to  continue  the  firm  permanently.  Held,  the  purchase  was  not  made  frau- 
dulently as  against  the  purchaser's  partner,  and  the  premises  were  not 
partnership  property. (4) 

72  j.  A  cestui  que  trust  can  purchase  at  a  sale  of  the  trust  estate  as 
freely  as  a  third  person,  but  he  does  not  become  a  trustee  for  parties 
interested,  without  a  repayment  to  him  of  the  purchase-money .(5) 

72  k.  A  trustee  may  retain  the  amount  of  a  loss,  occasioned  by  the 
failure  of  a  cestui  que  trust  to  comply  with  the  terms  upon  which  he 
purchased  a  portion  of  the  trust  estate  out  of  the  income  of  such  trust 
estate,  payable  to  said  cestui  que  trust.{6) 

7B.  Wiaere  one  of  several  trustees  refuses  to  accept  the  trust,  it  is 
usual  for  him  to  disclaim  by  deed,  or  release  all  his  interest  to  the  others. 
A  release  implies  a  prior  acceptance,  and  therefore  cannot  affect  such 
duties  as  are  founded  in  personal  confidence.  Thus,  notwithstanding 
such  release,  the  trustee  must  still  join  in  a  receipt  for  purchase-money, 
if  the  will  required  that  all  should  sign  it.(7)(a) 


(1)  Stuart  u.  Kipsam,  11  Barb.  271. 

(2)  Beeson  v.  Beeson,  9  Barr,  279. 

(3)  Anderson  v.  Lemon,  4  Saiidf.  552. 

(4)  Ih. 

(5)  Walker  v.  Brungard,  13  S.  &  M.  723. 


(6)  Waters  v.  Waters,  1  Md.  Ch.  196. 

(7)  Crew  v.  Dicken,  4  Ves.  97.  Se^i  Mass. 
Rev.  St.  ch.  69,  sec.  8 ;  Green  v.  Borland,  4 
Met.  330;  Field  v.  Arrowsmith,  3  Humph. 
442. 


(a)  With  regard  to  the  rights  and  duties  of  joint  trustees;  in  general,  they  are  not  respon- 
siVjle  for  the  acts  of  each  other.  2  Story's  Kqu.  520  ;  4  Kent,  306,  n.  Thus,  where  a  loss 
accrues  to  a  trust  fund,  through  the  default  of  one  of  five  trustees,  his  co-trustees  will  not  bo 
held  responsible  for  sucii  loss,  if  they  have  acted  in  good  faith,  and  exercised  that  vigilance 
over  the  fund,  which  a  man  of  ordinary  prudence  will  exercise  over  his  own  property.  The 
State  V.  Guilford,  18  Ohio,  500. 

Otherwise,  wlure  money  has  been  jointly  received,  or  a  joint  receipt  given  for  it,  (unless 
this  was  a  necessary  or  merely  formal  act,  and  proof  is  given  of  actual  payment  to  one  alone,) 
or  where,  though  payment  was  made  to  one,  it  was  done  by  the  act,  direction,  or  agreement 
of  the  otlier.     2  Story,  520  ;  4  Kent,  406,  n.     See  Griffin  y.  Macaulay,  7  Gratt.  476 ;  Banks 


CHAP.  XXV.]  TRUSTEE:  RIGHTS.  ETC.  oxr 

74.  After  accepting  and  entering  upon  tlie  execution  of  a  trust,  or 
perhaps  even  after  suffering  himself  to  be  appointed,  the  trustee  cannot 
surrender  it,  without  the  assent  of  the  cestui,  or  order  of  court.(l)(rt) 

(1)  Sheperd  v.,  McKvers,  4  John.  Clia.  136.  Seo  Mass.  St.  1843,  273  :  Chaplin  v.  Givens. 
Rice,  132. 

V.  Wilkes,  3  Sandf.  Ch.  99;  Johnson  v.  Corbett,  11  Paige,  2G5  ;   Richardson  v    Tlio  Steto 
2  Gill,  439;  Stale  v.  Guilibrd,  15  Ohio,  593.  ' 

WliL-re  there  are  several  trustees,  who  unite  in  a  breach  of  trust,  the  cestui  que  trust,  in 
seekiiij,'  reliet;  may  proceed  against  all  or  either  ol'  the  trustees.  Gilchrist  v.  Stevenson 
y  Barb.  9. 

■\Vitli  regard  to  the  poiuers  of  joint  trustees;  in  general,  tlioy  must  act  together,  in  order 
to  render  their  doings  legal  and  effectual. 

Thus  in  receipts  and  conveyances;  their  power  over  the  subject  matter  of  the  trust  being 
equal  and  undivided,  Uiey  cannot  act  separately.     Ridgeley  v.  Johnson,  11  Barb.  527. 

A  deed  in  the  names  of,  and  purporting  to  be  executed  by,  three  trustees  of  a  trust  in 
lands,  app(-ared,upon  its  production,  to  have  been  in  fact  executed  by  only  two  of  the 
trustees.  The  trustee  who  did  not  execute  the  deed  had  been  appointed  only  a  few 
months  previously  to  the  date  of  the  deed.  Held,  that  inasmuch  as  tlie  deed,  upon  its  face, 
assumed  that  ho  was  still  alive,  and  he  was  named  as  one  of  the  grantors  therein,  the  pre- 
8un)ption  was,  that  he  was  alive  at  the  date  of  tiie  deed;  and  that  a  party  claiming  under  the 
deed,  in  order  to  avail  herself  tliereof,  by  sliowing  authority  in  two  trustees  only  to  execute 
it,  was  bound  to  prove  that  such  third  trustee  was  dead  at  the  time  the  deed  was  executed 
by  the  oliiers.     lb. 

A  .<!ale  by  one  of  two  trustees,  of  property  held  by  them  jointly  under  an  assignment  for 
the  benefit  of  creditors,  is  void.  "Wilbur  v.  Almy,  12'  How.  (U.  S.)  180.  One  of  the  trustees 
cannot  release  a  mortgage.  Van  Rensselaer  v.  Akin,  22  Wend.  549.  Put  it  is  held,  that 
though,  where  a  trust  is  appointed  for  private  purposes,  all  the  trustees  must  join  in  receipts 
for  money;  in  cases  of  public  trusts,  a  majority  of  the  trustees  will  bo  sufficient.  Hill 
V.  Josselyn,  13  S.  &  M.  597.  In  Maryland,  where  one  of  two  trustoes  appointed  by  a  will  re- 
linquishes to  trustees,  the  other  may  execute  it.     Md.  L.  1828,  v-'h.  174. 

In  North  Carolina,  it  is  provided,  that,  where  several  exocntors  arc  appointed  in  trust  to 
sell  lands,  if  some  of  them  refuse  administration,  the  others  may  give  a  valid  deed. 
A  similar  provision  is  made  in  Pennsylvania,  where  an  executor  has  died,  reinove'l,  or  i)efcu 
discharged  ;  and,  in  Illinois,  where  one  of  the  execuwrs  empowered  to  sell  dies.  In  Ohio, fa 
surviving  trustee  under  a  will  may  execute  it,  unless  an  intention  is  expressed  to  tlie  contrary. 
In  Kentucky  it  is  held,  that,  where  a  more  discretionary  power  to  sell  lands  is  given  to 
several  executors,  they  have  a  potver,  without  an  inteni't,  and  one  cannot  sell  alone,  though 
the  rest  do  not  qualify.  But  a  devise  to  b>xocutors  to  sell,  for  payment  of  debts,  gives  them 
au  interest.  In  New  York,  upon  the  refusal  of  one  trustee  to  accept  the  trust,  the  whole 
estate  vests  in  the  others,  as  if  the  former  were  dead,  or  had  not  been  named.  And,  if  one 
refuse  to  accept,  and  formally  rentxmce  the  Jrust,  the  Court  of  Chancery  has  no  authority  to 
re-instate  him,  even  with  his  consent,  and  on  application  of  another  trustee.  1  N.  C.  Rev.  Sts. 
281  ;  Purd.  301-2,  Illin.  Rev.  L.  641 ;  Woolridge  v.  Watkins,  3  Bibb,  349  :  Baird  v.  Reman, 
1  Mar.  215;  Swan,  100);  King  v.  Donnelly.  5  Paige,  46;  Schoonhoven,  lb.  559.  See 
Champliii,  3  Kdw.  571;  NiJes  v.  Stevens,  4  Denio,  399;  Taylor  v.  Morris,  1  Comst.  341. 
In  Missouri  where  there  are  joint  trustees,  and  one  dies,  the  others  take  by  survivorship. 
Stewart  v.  Pettus,  10  Mi.ss.  755. 

(a)  All  the  trustees  of  a  will  declined  to  act,  and  did  not  act  or  take  upon  themselves  the  trusts 
of  the  will.  A  petition  was  presented  for  the  appointment  of  certain  persons  as  trustees,  "  in 
the  place  or  stead  of  the  trustees  so  declining  to  act,  who  appeared  by  counsel  and  dis- 
claimed. Held,  that  the  disclaiming  trustees  were,  neveriheles.s,  "  existing"  trustees,  so  as 
to  authorize  an  order  appointing  the  new  trustees  in  their  "  place  or  stead,"  within  the  mean- 
ing of  the  32d  section  of  the  Trustee  Act  of  1850.     Tylers,  &c.,  8  Eng.  Law  and  Eq.  96. 

A  marriage  settlement  contained  a  power  for  the  two  trustees  and  the  survivor  of  them, 
and  the  executors  or  admmistrators  of  such  survivor,  to  sell  certain  estates  with  the  consent 
of  the  husband  and  wife.  The  settlement  contained  no  power  of  appointing  new  trustees. 
one  trustee  died ;  the  other  trustee  went  to  reside  abroad ;  and,  upon  a  bdl  filed  for  that 
purpose,  two  new  trustees  were  appointed  under  an  order  of  the  court.  Held,  that  the  trus- 
tees appointed  by  the  court  had  no  right  to  execute  the  power  of  sale.  Newman  v.  War- 
ner, 7  Eng.  Law  and  Eq.  Rep.  182. 

A  and  B  contracted  for  the  building  of  a  house  on  a  certain  Jot,  which  A  erected,  and  for 
which  B  became  indebted  to  him  in  the  sum  of  $0,000.  tfhortly  afterwards,  B  conveyed 
the  house  and  lot  to  A  and  C,  in  trust  for  the  use  ofB's  wife  and  children,  and  to  be  held  by 
them  free  from  B's  debts.     After  B's  death,  A  prosecuted  his  claim  against  B's  estate,  and 


org  TRUSTS— CESTUI  AND  [CHAP.  XXY. 

75.  A  trustee  cannot  delegate  his  power,  as,  for  instance,  a  power  to 

^°  7  6  If  a  trustee  refuses  to  accept  the  trust,  the  Court  of  Chancery  will 
either  appoint  a  new  one,  assume  the  execution  of  the  trust  itselt,  or 
direct  a  release  to  other  trustees,  if  there  are  such,  who  are  willing  to 
accept  the  ofS.ce.(2) 

77  A  court  of  chancery  mav  also,  in  some  cases,  remove  a  trustee 
from  office,  though  he  is 'willing  to  act.  As  where  his  co-trustees  re- 
fuse to  join  with  him.  _  i      i  ^  o^ 

78.  So,  where  a  female  trustee  marries  a  foreigner,  though  she  ex- 
pressly disclaim  all  intention  of  going  abroad.  , 

7y.  And  it  is  said,  there  is  great  inconvenience  m  a  married  woman  s 

being  trustee.(3)  ^    j.  -c  f+i.^ 

80.  It  is  usual  to  provide  expressly  in  trust  deeds,  that,  it  any  ot  tue 
trustees  die,  become  incapable  of  acting,  or  wish  to  relinquish  the 
trust,  a  new  trustee  shall  be  appointed,  either  by  the  others  or  by  tlie 
cestui,  and  the  property  conveyed  to  him  jointly  with  the  rest.^a) 
Where  there  is  no  such  clause,  the  Court  of  Chancery  will  appoint  a 
new  trustee,  after  a  release  from  the  former  one.  This  may  be  done 
upon  a  bill  filed  against  the  remaining  trustees,  and  by  reference  to  a 
Master.(4)     And  Chancery  will  appoint  a  new  trustee,  notwithstanding 


(11  Hawley  v.  James,  5  Paige,  318. 

(2)  2  Brev.  Dig.  305  ;  Barnet  v.  Barnet,  4 
Des.  Clia.  4.54;  (Joop^v  v.  Henderson,  6  Bin. 
192;  Lining  i!.  Peyton,  2  Des.  375;  Travell 
i;.  Danvers,  Finch,  380;  ts.van,  1001;  Com. 
V.  Barnitz,  9  WaUs,  252;  Ebert,  9,  300; 
Carlisle;  lb.  332;  Snyder  v.  Snyder,  1  Md. 
Ch.  295. 

(3)  Uvedale  v.  Ettrick,  2  Cha.  C'«.  20; 
Lake  v.  Delambert,  4  Ves.  592-5.  See  Wiwiit 
V  Miller,  3  Barb.  Ch.  382  ;  Craig,  1  Barb.  3a 


11  B  Men.  245  ;  Jones,  &c.,  i  Sandf.  Ch.  615; 
Rio-ler  V.  Cloud,  2  Harr  (Pen.)  361 ;  Childe 
V  Willis,  2  Kn?.  L.  &  Equ.  356;  WaUs,  4 
lb  67;  Tunstall,  5Ib.  113;  Turner  v.  Maule, 
lb.  222;  Plyer,  &c.,  lb.  232;  Robert,  2 
Strobh.  Equ.  86 ;  Bayles  v.  Staats,  1  Halst. 
Ch.  513;  Davidson,  &.C.,  7  Eng.  L.  &  Equ. 
161  :   Davies,  &o.,  lb.  8;    Farrant,  lb.  47. 

(4)  Buchanan  v.  Hamilton,  5  Ves.  722; 
Stuyvesant,  3  Edw.  299  ;  Cape  Sable,  &c.,  3 
Blaiid,  627  ;  Winder  v.  Diffenderffer,  2,  167  ; 


Gibbes  u  Smith,  2  Rich.  Equ.  131;  Sloo\  Berry.' lb.  322;  Jones  v.  Stockett,  lb.  434; 
V.  Law,  1  Blatch.  512;  Berry  v.  Wilhain.son,  I  Ci..y,  Ala.  350. 

sou"-ht  by  a  bill  in  equity  to  have  the  trust  estate  sold  under  his  execution.  Held,  that 
havTasr  accepted  the  office  of  trustee,  A  could  not  reriouhce  it ;  and,  as  he  was  to  hold  the 
propertv  free  from  B's  debts,  he  could  not  enforce  his  own  claim  against  the  trust  estate,  as 
it  would  be  a  violation  of  his  duty  as  trustee.     Strong  v.  WiUis,  3  Florida.  124. 

"Where  a  testator  provides  that  his  executors  shall  sell,  lease,  ov  dispose  of  his  real  estate 
at  tliL'ir  discretion,  the  trust  is  personal ;  and,  if  the  executors  renounce,  it  cannot  be  exe- 
cuted" by  an  administrator  under  the  will.     Armstrong  t.  Park,  9  Humph.  195. 

(a)  A  testator,  by  his  will,  appointed  A  and  B  to  be  his  trustees.  He  then  directed  that, 
"if  the  trustees  hereby  appointed,  or  to  be  appointed,  as  hertinafter  is  mentioned,  should 
die  "  &c  it  should  be  lawful  for  other  tru.stees  to  be  appointed  as  therein  mentioned.  A 
died  in  the  lifetime  of  the  testator.  Held,  that,  under  the  power,  a  new  trustee  could  be 
appointed  in  the  place  of  A.     Hadley's  Trust,  9  Eng.  Law  and  Eq.  Rep.  67. 

A  testator  by  his  will,  appointed  A  and  B  to  be  his  trustees,  and  d\rected  that  if  they 
should  die  or  desired  to  be  discharged  from,  or  refused  or  declined  to  act,  it  should  be  lawful 
for  the  surviving  or  continuing  trustee  or  trustees,  or  if  there  should  be  none  such,  tlien  for 
the  trustee  so  desiring  to  be  discharii-ed,  or  refusing  or  declining  to  act.  to  appoint  new 
trustees.  A  died.  Held,  that  B  declining  to  act,  except  for  the  purpose  of  appointing  new 
trustees   had  the  power  of  appointing  new  trustees  in  the  place  of  A  and  B.     lb. 

In  South  Carolina,  in  case  ot  the  sulistitution  of  one  trustee  (or  another,  no  deed  is  neces- 
sary I'rom  the  one  to  the  oiher,  but  the  statute  of  1796  executes  the  transfer  by  the  order  ot 
the  court  making  the  subsiitulion.     McNisii  v.  Guerard,  4  Strobh.  Eq.  66. 

When  a  trustee  retires,  and  new  trustees  are  appointed  by  the  court,  the  retiring  trustee 
ia  entitled  to  have  the  accounts  taken.     Nott  v.  Foster,  1  Eng.  Law  and  PJq.  125. 

A  demise  of  lands  was  made  to  trustees  tor  1,000  years  on  certain  trusts.  On  a  petition 
for  the  appointment  of  new  trustees,  it  was  held,  that  the  reversioner  ought  to  be  served 
with  the  petition.     Farranfs  Trust,  in  re,  7  Eng.  Law  and  Eq.  Rep.  47. 


CHAP.  XXV.] 


TRUSTEE;  RIGHTS,  ETC. 


or,7 


by  the  will  creating  the  trust,  such  appointment  seems  to  be  confidcil 
to  the  original  trustee.  So,  if  one  trustee  declines,  Chancery  will 
appoint  a  receiver  for  an  infant  ceslin.{[) 

81.  In  Kentucky,  where  there  is  a  devise  to  two  in  trust,  without 
mentioning  i!ie  survivor,  upon  the  death  of  one,  one-half  of  the  trust 
estate  j)asses  to  his  heirs.  So  a  trustee  may  devise-jij.s  estate,  and, 
if  the  devisee  renounce,  the  trust  will  pass  to  the  heirs.(2) 

82.  All  persons  are  capable  of  being  trustees.  In  England,  the 
king,  who  cannot  be  seized  to  a  use,  may  be  a  trustee,  and  the  remedy 
against  him  is  in  the  Exchequer.  So,  in  this  country,  a  State  may  be 
a  trustee.  So  a  corporation  may  hold  in  trust  for  its  own  members  or 
others,  and  is  subject  to  the  jurisdiction  of  Chancery. (3) 

88.  A  trust,  once  created,  is  said  to  fasten  itself  on  the  estate. 
Chancery  never  wants  a  trustee.  Hence,  when  the  trustee  dies  or 
becomes  incapable  of  acting,  the  court  will  provide  for  the  continu- 
ation ot  the  trust,  by  compelling  the  legal  owner  of  the  estate  to  per- 
form it.  So,  also,  where  no  trustee  is  appointed,  if  the  object  of  the 
grant  or  devise  cannot  be  otherwise  effected,  the  court  will  appoint 
or  imply  a  trustee.  Thus,  where  land  is  devised  upon  certain  trusts, 
to  a  company  which  is  incapable  of  taking  it,  the  heir  at  law  of  the 
testator  shall  be  held  a  trustee.  So,  where  land  is  devised  to  a  mar- 
ried woman,  for  her  separate  use,  her  husband  shall  be  a  trustee  for 
her.(a)  And  the  same  has  been  held  in  Tenuess>.e,  in  the  gift  of 
a  slave  to  a  woman  and  the  heirs  of  her  body.  So,  where  no  trustee 
of  the  wife  is  appointed  by  an  ante-nuptial  marriage  settlement,  by 
which  the  husband  stipulates  that  the  wife  shall  enjoy  her  own  })rop- 
erty,  the  husband  will  be  treated  as  trustee  in  equity,  and  compelled 
to  account  to  his  wife,  as  such.  So,  where  the  otdy  obstacle  to  the 
execution  of  a  trust  created  by  a  will,  is  the  refusal  of  trustees  to 
accept  the  trust,  the  court  will  supply  the  defect  by  appointing  new 
trustees.  Generally  it  may  be  stated,  that,  where  propertv  has  been 
bequeathed  in  trust,  without  the  appointment  of  a  trustee,  if  it  is  per- 
sonal estate,  the  personal  representative  is  deemed  the  trustee  ;  and  if 
real  estate,  the  heir  or  devisee.(4)(i) 


(1)  Diinscomb  v.  Dunscomb,  2  H.  &  Miin. 
11  ;  Tail  v.  Jenkins,  1  Y.  &  Coll.  Clm.  492. 
Seo  Goodwin  v.  Hubbard,  15  Mass.  210. 

(2)  Sunders  v.  Morrison,  7  Men.  66 ;  Wag- 
gener  v.  Wntrffener,  3,  545.  See  WaltODS  v. 
Coulson.  1  McL.  132. 

(3)  Penn  v.  Lord  Baltimore,  1  Yes.  453  ;  3 
Comm.  438;  Mayor,  Ac.  v.  Atl'y  Geii.  7  Rro. 
Pad.  2S5 ;  Att'y,  &c.  v.  Governors,  Ac,  2 
Yes.  4G ;   Green  v.  Rutherfortli,   1,  4G8 ;    1 

■  Cruise,  322. 


(1)  2  Story  on  Kqu.  396;  Blanchard  v. 
Blood,  2  Barb.  352;  Burrill  v.  Sheii,  2  Barb. 
457  ;  llarkins  v.  Coalter,  2  Port.  463  ;  Souley 
V.  Clockmakers,  &c.,  1  Bro.  81  ;  Rogers  v. 
Ross,  4  John.  Cha.  383;  Bennet  v.  Davis,  2 
P.  Wms.  316;  Hamilton  v.  Bishop,  8  Yerg. 
33 :  Stagg  v.  Beekman.  2  Kdw.  89  ;  Ray  v. 
Adams,  3  My.  &  K.  237  ;  Hoxie  v.  Hoxie.  7 
Paiy:e,  187;  Couch  ?;.  Couch,  9  B  Mon.  IGO; 
DulTy  V.  Calvert,  6  Gill,  487  ;  Suaroz  r.  Pun- 
pelly,  2  Sandf.  Ch.  336;  Willis  on  Trustees,  56. 


(a)  It  lias  been  held  otherwise  in  South  Carolina.  Hunter,  Rice  293.  See  Raskins  v. 
Gile.'.,  lb.  315.  ' 

(6)  By  the  Maryland  act  of  1831,  c.  311,  sec.  11,  mere  naked  tru-sts,  when  the  trustee  has 
no  beneficial  interest  or  estate  whatsoever  in  the  lands,  descend  to  the  heir  at  eoninion  law. 
Duffy  V.  Calvert,  6  Gill,  487. 

But,  in  a  special  case,  the  right  of  the  trustee  to  reimburse  him-selfout  of  the  trust  in  his 
hands,  tiie  heavy  expenses  incurred  in  the  attempt  to  .sustain  the  will,  and  the  ulterior 
limitations  in  his  favor  in  the  codicil,  were  iield  to  create  such  beneficial  interests  as  must 
exclude  this  trust  from  the  operation  of  that  act.     lb. 


358  TRUST  TERMS.  [CHAP.  XXVL 

84.  But  if  the  terms  of  a  devise  show  a  manifest  intent  to  charge 
with  the  trust  only  the  party  to  whom  the  estate  is  expressly  given ; 
upon  his  refusing  to  accept  the  estate,  it  vests  in  the  heirs,  discharged 
of  the  trust ;  and  they  are  not  hable  to  reimburse  any  moneys  ex- 
pended for  the  benefit  of  the  cestui  que  trust,  who  is  a  minor,  by  his 
guardian. 

85.  Though  a  trust  will  not  be  suffered  to  fail  for  want  of  a  trustee ; 
yet,  it  is  said,  that  being  an  incident  merely,  it  will  be  suspended  or 
destroyed  by  the  suspension  or  destruction  of  the  legal  estate,  as  by 
escheat,  disseizin,  &c.  But  it  has  been  held,  that  where  the  estate  of 
the  trustee  devolves  upon  the  State  by  escheat,  the  State  holds  subject 
to  the  trust.  A  trust  will  escheat  for  want  of  heirs  ;  but  the  trustee 
ma}^  maintain  ejectment  against  one  claiming  under  the  State.(l) 

86.  On  the  other  hand,  if  all  the  purposes  of  a  trust,  as  to  any 
share  of  the  property,  cease,  or  are  illegal,  the  estate  of  the  trustees 
ceases  jxro  ta)Uo.{2) 


CHAPTER  XXVI. 

TRUST  TERMS.     TRUBTS  IN  NEW  TORE. 
1.  Trust  terms.  |  9.  Trusts  in  New  York. 

1.  Terms  for  years  are  either  vested  in  trustees  for  the  use  of  par- 
ticular persons,  or  for  p)articular  pnuyoses  ;  or  else  upon  trust,  to  attend 
the  viheritancc. 

2.  Those  of  the  former  class  are  called  terms  in  gross.  The  cestui 
que  trust  of  such  a  term  is  entitled  to  the  rents  and  profits,  and  may  also 
demand  an  assignment  of  the  term  to  himself.  His  estate  is  transfera- 
ble; passes  to  his  executors  and  administrators;  and  is  equitable, 
though  not  legal  assets,  not  being  witlun  the  statute  of  frauds.  The 
husband  of  a  female  cestui  has  the  same  interest  as  in  any  other  term. 

3.  Terras  attendant  on  the  inheritance,  though  constituting  a  title 
equally  intricate  and  important  in  the  English  law,  are  practically 
almost  unknown  in  the  United  States,  and  therefore  demand  only  a 
very  brief  notice. 

4.  The  attendancy  of  terms  is  tlie  creation  of  a  court  of  equity,  invented 
partly  to  protect  real  property,  and  partly  to  Jceejj  it  in  the  right  channel. 

5.  If  a  term  has  been  created  for  a  particular  purpose,  which  is  satis- 
fied, and  the  instrument  does  not  provide  for  a  cesser  of  the  term,  on 
the  happening  of  that  event,  the  beneficial  interest  in  it  becomes  a  crea- 
ture of  equity,  to  be  disposed  of  and  moulded  according  to  the  equit- 
able interests  of  all  persons  having  claims  upon  the  inheritance.  When 
the  purposes  of  the  trust  are  satisfied,  the  ownership  of  the  term  belongs, 
in  equity,  to  the  owner  of  the  inheritance,  whether  declared  by  the 

(1)  Benzein  v.  Lenoir,  Dov.  Eq.  225  ;  Mar-i      (2)  Lorillard  v.  Coster,  5  Paio-e,  173  ;  Parks 
shall  V.  Lovelass,  Cam.  &  Nor.  217  ;  Ward  v.    v.  Parks,  9  Paige,  1G7 ;  McMullin  v.  McMul- 
Mattheus,  10  Gill  &  J.  443  ;    St.  4  &  5  Wm.    lin,  8  Watts,  236. 
4,  ch.  23.    See  Com.  v.  Blanton,  2  Monr.  393.  | 


ClIAr.  XXVI.]  TRUSTS  IN  NEW  YORK.  359 

oric-inal  conveyance  to  attend  it  or  not.  ^J^lic  trustee  will  hold  the  term 
for  equitable  incumbrancers,  according  to  pricjrity  ;  and  it  is  a  general 
rule,  that  in  all  cases  where  the  term  and  the  freehold  would,  if  legal 
estates,  merge,  by  being  vested  in  the  same  person,  the  term  will,  in 
equity,  be  construed  to  be  attendant  on  the  inheritance,  unless  there  be 
evidence  of  an  intention  to  sever  them. 

0.  If  a  bona  fide  purchaser  happen  to  take  a  defective  conveyance,  he 
may  remedy  the  defect,  and  jierfect  his  equitable  title,  by  taking  an 
assignment'of an  outstanding  term,  which  will  give  him  priority  over 
the  intermediate  legal  estate, 

7.  As  H  conveyance  of  the  legal  estate  in  fee  of  a  trustee  ma}'  be 
often  presumed,  so  in  many  cases  the  surrender  of  a  trust  term  may  be 
presumed. 

y.  The  equitable  interest  in  a  term  attendant  devolves  in  the  same 
channel,  and  is  governed  by  the  same  rules,  as  the  inheritance.  The 
term  becomes  consolidated  with  the  inheritance,  and  follows  it  in  its  de- 
scent or  alienation.  On  the  death  of  the  ancestor,  it  vests  technically 
in  his  personal  representatives,  but  in  equity  it  goes  to  the  heir.  It 
must  be  devised  with  all  the  formalities  of  real  estate.(l)(a) 

9.  By  the  New  York  Revised  Statutes,  uses  and  trusts  are  abolished, 
except  as  therein  authorized  and  modified;  and  every  estate  and  inter- 
est in  land  converted  into  a  legal  riglit,  with  the  same  exception.(2)(6) 

10.  In  relation  to  trusts,  these  statu*.es  abolish  passive  trusts,  where 
the  trustee  has  only  a  naked  and  formal  titb,  and  vest  the  whole  bene- 
ficial interest,  or  right  in  equity  to  the  possession  and  profits,  in  the 


(1)  4  Kent,  86,  94;   1  Cruise,  334,  et  seq. 

(2)  4  Kent,  294.  See  Hone  v.  Van  Schaick, 
20  Wend.  5G4  ;  Darling  v.  Rogers,  22,  483; 
Jack.son  v.  Eiiwards,  lb.  498;  Rogers  u.  De 
Forest,  7  Paige,  272;  Gott  u.  Cook,  lb.  521  ; 
Hone  f.  Van  Scliaick,  lb.  221;  Do  Peyster 
V.  Clendening,  8  Paige,  295  ;  Van  Vechten  v. 
Van  Vecliten,  lb.  104;  Vail  v.  Vail,  7  Barb. 
22G ;  Leggett  v.  Perkins,  2  Coinst.  297 ; 
Tucker  v.  Tucker,   5   Barb.   99 ;  S«lden  v. 


Vermilya,  3  Comst.  525  ;  Yates  v.  Yates, 
9  Barb.  324 ;  Rlerricker  v.  Dickinson,  9,  516  ; 
Craig  y.  Criig,  3  Barb.  Cli.  76,  9;  L'Amoiireu.x 
V.  Van  Renssalaer,  1  Barb.  Ch.  34 ;  M'Cos- 
ker  V.  Brady,  lb.  329;  Mason  v.  Jones,  2 
Barb.  229;  Ha.xitun  v.  Corse,  2  Barb.  Ch. 
506;  Mason  v.  Mason,  2  Sandf.  Ch.  432; 
Arnold  v.  Gilbert,  3,  531;  Bollinger  u.Shafer, 
2  Sandf.  Ch.  293. 


(a)  I  have  been  able  to  find  no  case  in  the  American  Reports,  upon  thesubject  of  attend- 
ant terms.  I  am  itiforraed  by  one  of  the  counsel  in  a  case  in  Massachusetts,  (Salisbury  v. 
Bigelow,  S.  J.  C.  March,  1838,)  that  the  subject  was  there  much  discussed — probably,  by 
way  ol  analogy  and  illustration  merely. 

{>>)  In  Wisconsin,  (Rev.  Sts.  chap.  57,  p.  318,)  uses  and  trusts  are  abolished  except  as 
expressly  provided. 

Section  2.   Estates  now  held  to  use  are  confirmed. 

Sees.  3  &  5.  A  ny  one  entitled  to  possession  of  land  by  virtue  of  an  agreement,  &c.,  shall  be 
deemed  to  have  tlie  legal  estate. 

Section  4.  The  last  section  is  not  to  apply  to  active  trusts  where  the  trustees  have  the 
management  and  responsibility. 

Section  6.  The  above  sections  not  to  apply  to  resulting  trusts. 

So(;tion  7.  A  trust  shall  not  result  to  the  party  who  pays  the  purchase-money,  another 
taking  the  deed ;  but  the  deed  shall  be  deemed  fraudulent,  and  a  trust  shall  result  to  the 
creditors  of  the  former. 

Section  10.  A  purchaser  without  notice  of  a  resulting  trust  shall  not  be  affected  by  it. 

Section  11.  Express  trusts  may  be  created  to  sell  for  creditors;  to  sell,  mortgage  or  lease 
for  legatees,  or  pay  a  charge  on  land ;  to  receive  income  and  apply  to  the  use  of  any  person, 
subject  to  chap.  56  ;  and  in  some  other  cases. 

Section  12.  A  devise  to  sell,  without  power  to  receive  rents,  &c.,  shall  bo  construed  a 
power  merely. 

Section  13.  The  surplus  of  rents  of  trust  property,  beyond  what  is  necessary  to  the  sup- 
port of  the  cestui  que  trust,  is  subject  to  his  debts. 

Sea  14.  Trusts  shall  not  be  deemed  powers,  when  they  can  be  lawfully  executed  as  such. 


g60  TRUST  TERMS.  [CHAP.  XXVI. 

cestui  que  trust.     The  latter  takes  a  legal,  corresponding  with  his  bene- 
ficial interest;  and  no  estate  or  interest  vests  in  the  trustee.(l) 

11.  Trusts  are  confined  to  two  classes.  1.  Trusts  arising  or  result- 
ing by  implication  of  law.  But  the  payment  of  the  purchase-money 
by  one  man,  for  land  conveyed  to  another,  creates  no  trust  in  favor  of 
the  former,(a)  except  in  relation  to  his  creditors  existing  at  the  time*, 
and  excepting  also  a  conveyance  made  to  the  latter  without  the  con- 
sent of  the  former,  in  violation  of  some  trust.  But  no  resulting  trust 
is  valid  against  a  purchaser  for  valuable  consideration,  without  notice. 
2.  Certain  classes  oi  active  or  express  trusts,  where  the  trustee  is  clothed 
with  some  actual  power  of  disposition  or  management,  which  requires 
a  legal  estate  and  actual  possession.  Express  trusts  are  allowed:  '1.  To 
sell  lands  for  the  benefit  of  creditors;  3.  To  sell,  mortgage  or  lease 
lands  for  the  benefit  of  legatees,  or  for  the  purpose  of  satisfying  uny 
charge  thereon;  4.  To  receive  rents  and  profits,  and  apply  them  to 
the  support  and  education  of  anj^  person,  or  to  accumulate  them  for  the 
purposes  and  within  the  limits  mentioned.  In  these  cases,  the  trustee 
takes  the  whole  estate  in  law  and  equit}^,  subject  onlj'  to  the  execution 
of  the  trusts.  If  an  express  trust  is  created  for  any  other  purpose,  no 
estate  vests  in  the  trustee :  but  if  the  act  authorized  is  lawful  under  a 
'power,  the  trust  is  valid  as  a  power  in  trust.  Every  estate  and  interest, 
not  embraced  in  an  express  trust,  and  not  otherwise  disposed  of,  re- 
mains in  or  reverts  to  the  person  who  created  the  trust,  and  he  may 
dispose  of  the  lands,  subject  to  the  trust,  or  in  the  event  of  its  failure 
or  termination ;  and  the  grantee  or  devisee  will  have  a  legal  estate,  as 
against  all  persons  but  the  trustee.  The  conveyance  to  the  trustee 
must  contain  a  declaration  of  the  trust;  otherwise  it  will  be  absolute 
against  subsequent  creditors  of,  or  purchasers  from,  the  trustee  without 
notice.  When  thus  declared,  any  act  of  the  trustee  in  contravention 
of  the  trust  is  void.  Upon  the  death  of  all  the  trustees,  the  trust  vests 
in  the  Court  of  Chancery,  and  does  not  pass  to  the  representatives  of 
the  surviving  trustee.(2) 

12.  Where  some  of  the  trusts  provided  for  are  valid,  and  others 
invalid,  the  trustee  will  take  a  legal  estate  for  the  fulfilment  of  the 
former  only,  unless  the  whole  are  so  blended  together,  that  it  is  im- 
practicable to  execute  one  without  the  other,  in  which  case  all  will  be 
void.  And  any  subsequent  limitation,  which  is  invalid  as  creating  a 
perpetuity,  shall  be  deemed  wholly  void,  in  determing  the  validity  of 
the  legal  estate  itself,  or  other  preceding  trusts.(3) 

13.  An  annuity  is  a  legacy  of  several  annual  sums  in  gross;  and,  if 
payable  from  the  rents  and  profits  of  land,  a  charge  upon  such  land. 
Hence,  an  express  trust,  to  lease  lands  and  receive  the  rents,  &c.,  for 
payment  of  such  annuity,  is  valid  under  section  55  of  the  statute.(l:) 

(1)  4  Kent  303;  Cuslmey  v.  Henry,  4 1  v.  Thompson,  4  Barb.  279;  8,  537;  De  Kay 
Paip:e,  345 ;  Tates  v.  Yates,  9  Barb.  324.         v.  Irving,  5  Denio,  646 ;  Tucker  v.  Tucker,  5 

(2)  4  Kent,  303-4-5.  Barb.  99. 

(3)  Hawley  v.  James,  5  Paige,  318;  Dupre  I      (4)  lb. 

(a)  But  see  Ross  v.  Hefreman,  2  Edw.  Chan.  373,  that,  where  there  is  a  joint  advance  of 
money  upon  a  purchase  by  two  in  the  name  of  one,  a  trust  results  to  the  otiier,  tiiou^ii  he 
did  not  pay  the  money  till  after  completion  of  the  purchnse.  If  A  purchases  with  money 
of  B,  and  the  deed  is  made  to  A  by  consent  of  B,  no  trust  results  to  B.  Norton  v.  Stone. 
8  Paige,  222. 


CUAP.  XXVI.] 


TRUSTS  IN  NEW  TOllK. 


361 


14.  In  such  case,  there  is  a  resulting  trust  in  the  surplus  rents,  tScc, 
in  favor  of  the  person  presuni})tively  next  entitled  to  the  estate.(L) 

15.  Where  certain  property  is  to  be  invested  in  land,  in  trust  to  re- 
ceive the  rents  and  j)roQts  for  the  use  of  a  cestui  que  trust,  and  the  in- 
terest of  the  latter  is  inalienable,  (under  the  Eev.  Statute,  sect.  63,)  even 
the  consent  of  the  parties  and  of  the  Court  of  Chancery  also  will  not 
authorize  anyact  which  is  virtually  an  alienation.  ButfiTthc  property 
is  ('ireeled  to  be  invested  in  lands  in  a  ceitain  place,  the  court  may 
autlioi-iz>;  an  investment  in  other  lands,  with  the  consent  of  parties,  and 
may  itself  consent  on  behalf  of  inlants.(2) 

10.  A  trust  to  receive  rents  and  profits  and  pay  them  over  was  a 
familial'  one  at  common  law  ;  but  at  first  was  held  not  to  be  valid  un- 
der the  Eeviscd  Statutes.  The  phrase  used  in  describing  the  third 
class  of  express  trusts,  "  ap[)ly  them  to  the  use,"  was  decided  to  mean 
that  the  trustee  sUoxild  provide  means  and  pay  debts  ;  that  he  is  to  judge 
of  the  proprict}^  of  the  expenditures;  and  has  the  whole  legal  and 
equitable  estate;  that  the  cestui  has  no  estate,  but  only  a  right  to  en- 
force the  trust  in  equity.  This  class  of  express  trusts  was  said  to  be 
intended  ibr  the  cases  of  minors,  j^mes  covert,  lunatics  and  spendthrifts. 
But  in  a  later  case  it  has  been  held,  that  one  who  creates  a  trust,  to  re- 
ceive rents  and  profits  or  income  for  the  use  of  another,  may  direct  the 
manner  of  their  application,  and  that  they  be  periodically  paid  over  to 
the  cestui,  to  provide  him  with  necessaries.(3) 

17.  In  order  to  receive  rents  and  profits  for  the  use  of  another,  the 
trustee  must  have  a  legal  title  to  the  land.  If  such  title  is  vested  in 
the  cestui  himself,  no  valid  power  in  trust  can  be  reserved  to  the  trustee. 

18.  A  testator  directed  that  his  property  should  be  invested  in  lands, 
to  be  conveyed  to  his  children,  but  in  trust  for  their  guardian  to  receive 
the  rents  and  profits  for  their  use,  both  during  and  after  their  minority, 
so  long  as  he  should  think  proper.  Held,  the  trust  was  void  under  the 
Revised  Statutes;  that  the  guardian  took  no  estate  as  trustee,  but 
could  hold  the  fund  only  as  guardian. (4) 

ly.  A  trust  for  the  accumulation  of  rents,  &c.,  or  income,  is  invalid, 
unless  it  is  for  the  sole  benefit  of  an  infant,  and  he  to  be  paid  abso- 
lutely on  coining  of  age.(5) 

20.  Trusts  of  real  property  for  charitable  uses  arc  within  the  prohi- 
bition of  the  statute,  unless  authorized  by  the  act  of  1810,  respecting 
grants  and  conveyances  to  colleges  and  other  literary  institutions,  and 
made  to  such  trustees  as  are  therein  authorized  to  hold  (6) 

21.  A  religious  society  may  purchase  and  hold  land  in  trust  for  any 
use  within  the  general  objects  of  its  incorporation.  Where  a  grant  was 
made  to  a  religious  society  in  trust  for  the  support  of  the  minister; 
held,  tliis  use  was  within  the  "  other  pious  uses"  for  which  religious 
societies  were  empowered  to  purchase  and  hold  real  property  by  the 
general  act  for  their  incorporation. (7) 

22.  An  annuity,  arising  from  the  proceeds  of  real  and  personal 
estate  in  the  hands  of  trustees,  is  beyond  what  is  necessary  for  the  sup- 
port of  the  party  and  his  family,  subject  to  the  claims  of  his  creditors  ; 


(1)  Tb. ;  Irvino:  v.  De  Kay,  9  Paigo,  521. 

(2)  Wood  V.  Wood.  5  Paiu'O,  59G. 

(3)  Coster  v.  Lorillard,  1835,  4  Kent,  309, 
;   Gott  V.Cook,  7  Paige,  521. 

(4)  Wood  V.  Wood,  5  Paige,  597. 


(5)  Hawley  v.  James,  5  Paige.  318. 

(6)  Vales  v.  Yates,  9  Barb.  324. 

(7)  Tucker  v.  St.  Clement's  Churoli,  3  Sandf. 
242. 


362 


TRUST  TERMS.     TRUSTS  IX  NEW  YORK.  [CHAP.  XXVL 


and  tlie  Court  of  Chancery  will  not,  under  the  provision  empowering 
them  to  exonerate  from  creditors'  suits  such  funds  created  by  third 
persons,  insert  in  an  injunction  a  qualification  excepting  trust  funds  so 
created.(l) 

28.  A  trust  created  by  will  to  executors,  to  sell  and  convey  gores  of 
land  to  straighten  lines;  to  rent  houses  and  collect  rents  ;  to  repair  ;  to 
pay  taxes  and  assessments ;  to  effect  insurance,  and  pay  over  the  surplus 
to  the  devisees  thereof;  such  trust  to  continue  until  the  death  of  the 
widow  of  the  testator,  and  one  year  afterwards — is  illegal  under  the 
statute,  which  prohibits  the  alienation  of  trust  estates,  and  the  creation 
of  trusts  to  extend  beyond  two  lives  in  being.(2) 

24.  It  cannot  be  objected  to  the  validity  of  a  trust,  that  it  unduly 
suspends  the  alienability  or  absolute  ownership  of  the  property,  where 
the  execution  of  the  trust  by  selling  is  unlimited  as  to  time,  if  the  time 
is  not  made  to  depend  on  an  event  which  miglit  carry  it  beyond  the 
duration  of  two  lives.(3) 

25.  A  general  power  in  trust,  the  execution  or  non-execution  of 
which  does  not  depend  on  the  mere  volition  of  the  trustees,  is  imperative 
in  its  nature,  and  imposes  a  duty,  the  performance  of  which  may  be 
compelled  in  equity.(4) 

26.  A  husband,  by  post-nuptial  settlement,  conveyed  all  the  property 
acquired  by  his  marriage  to  trustees,  "  to  hold  and  to  keep  the  principal 
and  interest  thereof  during  the  said  marriage,  exempt  from  his  debts, 
contracts,  or  control ;  to  be  managed  and  disposed  of  on  her  separate 
orders  or  receipts,  or  by  her  deeds  or  will,  so  that  she  may  enjoy  and 
dispose  of  the  same  as  it  came  from  her  parents  and  sister,  or  may 
hereafter  in  any  manner  accrue  to  her  in  all  respects  as  if  she  were 
unmarried."  Held,  the  deed  passed  to  the  trustees  all  the  interest 
which  the  husband  had  acquired  by  the  marriage,  and  created  a  good 
and  valid  trust,  and  not  a  mere  nominal  trust,  nor  did  it  contemplate  a 
duration  greater  than  was  allowed  by  statute.(5) 

27.  Held,  also,  that  such  deed  did  not  pass,  as  the  husband  had  no 
power  to  convey  the  fee,  or  the  right  to  dispose  of  the  real  estate  of  the 
wife,  nor  the  rents  and  profits  thereof  beyond  his  lifetime.(6) 

28.  Held,  also,  that  the  power  of  appointment  by  the  deed  to  the 
wife  extended  to  the  absolute  disposal  by  her  of  the  principal  and  in- 
come, or  of  any  part  thereof.(7) 

29.  The  Revised  Statutes  do  not  apply  to  a  will,  creating  a  trust  which 
was  executed  before  they  were  passed.(8) 


(1)  Rider  v.  Mason,  4  Sandf.  Ch.  351. 

(2)  Tucker  v.  Tucker,  5  Barb.  99. 

(3)  Arnold  v.  Gilbert,  6  Barb.  190, 

(4)  lb. 


(5)  Cruger  v.  Cruger,  5  Barb.  225. 

(6)  lb. 

(7)  lb. 

(8)  Stewart  v.  McMartin,  5  Barb.  43J 


CHAP.  XXYII]  ESTATE  ON  CONDITION,  ETC.  363 

CHAPTER  XXVII. 

ESTATE  ON  CONDITION.     NATURK  AND  KINDS  OF  CONDITIONS. 


1.  Definition. 

2.  Implied  or  express. 

4.  Preceilent  or  subsequent 

11.  M;iy  belong  to  any  estate. 

12.  Tilings  executed  and  executory. 

13.  Mu.-»t  determine  tiie  whole  estate. 
15.  To  wiiom  reserved. 

18.  Impossible  conditions. 

19.  Iliesral  conditions. 


20.  TJepupjnant  conditions. 

23.  Cannot  bo  made  void  by  a  change  of 
tiie  law. 

25.  Kcpni^nant  obligations. 

2?.  Condition  against  assignment  of  lease. 

38.  Confession  of  judgment,  whether  a  trans- 
fer. 

40.  For  re-entry  in  case  of  insolvency. 

43.  Ill  restraint  of  marriage. 


1.  A  condition  is  said  to  be  a  qualification  or  restriction  annexed  to 
a  conveyance,  by  which,  upon  the  happening  or  not  happening  of  a 
particular  event,  or  the  performance  or  non-performance  of  some  act 
by  the  grantor  or  grantee;  an  estate  shall  commence,  be  enlarged,  or 
be  defeated. (1)  Lord  Mansfield  remarked,  that  at  common  law  the 
only  mollification  of  estates  was  by  condition. (2) 

2.  A  condition  is  either  implied  or  express.  Implied  conditions  are 
those  created  by  law,  and  not  by  any  express  words  ;  that  is,  the  legal 
incidents  of  estates.  For  instance,  at  common  law,  a  tenant  for  life 
held  his  estate  upon  the  implied  condition,  that  any  attempt  by  him  to 
convey  in  fee  would  be  a  forfeiture  of  his  interest ;  and  also  upon  the 
implied  condition,  not  to  commit  waste. (8)(a) 

(1)  2  Cruise,  4.  |      (3)  Co.  Lit.  233  b. 

(2)  Uoe  V.  Hutton,  3  B.  &  P.  654,  n.  | 

(a)  Where  a  conveyance  is  made  for  certain  parposes,  expressed  in  the  deed,  the  question 
sometimes  arises,  whether  the  application  of  the  land  to  the  specified  uses  constitutes  an 
implied  condition,  the  breach  of  which  will  forfeit  the  estate. 

Grant,  in  1640,  by  the  assembly  of  the  colony  of  New  Haven,  of  certain  land,  "  for  the 
purpose  of  planting,"  to  be  located  by  the  grantees  in  separate  lots,  and  held  in  severalty. 
Held,  these  terms  did  not  make  a  condition  or  qualification  that  the  lots  should  be  planted, 
in  the  modern  sense  of  the  word,  but  the  grant  was  for  the  purpose  of  a  settlement.  East 
Haven  v.  Ilemmingway,  7  Conn.  186. 

Whether  a  deed  of  land,  "for  the  purpose  of  a  court-house  and  jail,"  involves  an  implied 
condition  against  usi-ig  it  for  any  other  purpose,  qu.  If  it  does,  the  erection  of  a  stable  on 
the  land  is  no  breach  of  the  condition,  nor  of  a  dwelling  for  the  jailor,  with  proper  out- 
houses and  a  garden.  Jackson  v.  Pike,  9  Cow.  69.  Grant  of  land,  on  condition  that  certain 
public  buildings  should  be  there  erected.  By  an  act  passed  afterwards,  the  scat  of  justice 
was  removed.  Held,  the  land  reverted.  Police,  &c.  v.  Reeves,  18  Mart.  221.  See  Austin 
V.  Cambridgeport,  &c.,  21  Pick.  215;  Braitiiwaito  v.  Skinner,  5  Mees.  &  W.  313. 

A  granted,  fi)r  a  nominal  consideration,  a  lot  of  land  to  certain  persons,  in  trust  for  those 
who  had  subscribed,  or  migiit  thereafter  subscribe,  towards  the  erection  thereon  of  a  school- 
house  and  house  of  public  worship,  and  towards  the  support  of  a  school,  or  of  the  gospel,  in 
said  building:  providing,  tliat  if  the  premises  should  be  converted  to  any  other  use  than  as 
aforesaid,  and  for  a  burying-LTOund,  the  lot  should  revert  to  the  grantor  and  his  assigns. 
One  of  the  trustees  permitted  a  female,  in  distress,  to  occupy  the  premises  temporarily  as 
tenant  at  will,  without  rent,  though  she  and  her  family  remained  there  seven  years.  Held, 
no  forfeiture.     McKissick  v.  Pickle,  16  Penn.  140. 

In  case  of  a  conveyance,  with  warranty,  to  commissioners  and  their  successors,  for  the 
use  of  a  county  forever,  in  consideration  of  one  dollar,  and  that  the  county  seat  had  been 
located  on  the  land  ;  the  grantor  cannot  recover  it  back,  though  the  legislature  subsequently 
change  the  county  seat.  Harris  v.  Shaw,  13  lUiii.  456.  It  might  be  otherwise,  if  the  grant 
had  been  on  condition  of  using  the  land  for  a  particular  purpose.     lb. 

Deed,  in  the  common  form  of  a  conveyance  in  fee,  "for  the  purpose  of  erecting  a  school- 


364  ESTATE  OX  CONDITION,  ETC.  [CHAP.  XXVII. 

3.  Express  conditions  are  those  created  bj  express  words,  either  in 

house  or  scliool-bouses,  for  school  purposes,  and  for  tliese  purposes  only."  Held,  a  convey' 
ance  of  the  land,  and  not  of  some  possibility  or  peculiar  Interest  in  reversion.  Sherwood  v. 
"Waller,  20  Co)in   262. 

Grant  of  land  in  fee,  in  trust  for  certain  persons  and  their  associates,  "  for  the  purpose  of 
the  public  worship  of  God,  and  the  erection  on  said  premises  (granted  of  a  clmrch  or  meeting- 
house for  said  worship,  as  also  a  house  for  a  clergyman  and  a  school-house."  The  deed 
contained  the  following  conditions:  that  "  the  grantees,  or  cestuisque  trust,  or  some  of  them, 
shall  build  and  finish,  within  two  years  from  the  9tli  day  of  November,  1832,  on  the  lot 
hereby  conveyed,  a  church  or  meeting-liouse  for  the  public  worsliip  of  God,  and  shall  build 
and  finish,  within  three  years  from  the  said  9th  day  of  November,  a  suitable  dwelling-house 
for  the  clergyman,  and  a  school-house,  all  on  the  lot  hereby  conveyed  :  and  in  case  the  said 
church  or  meeting-Iiouse,  and  parsonage-house  and  school-house,  sliall  not  be  built  on  said 
lot.  and  finished  within  the  respective  times  above  mentioned,  then  the  land  hereby  granted, 
■with  its  appurtenances,  is  to  revert  to  'the  grantors.'  And  this  grant  is  upon  the  further 
condition,  that  the  land,  &c.,  shall  be  forever  hereafter  appropriated  to  the  maintenance  and 
support  of  the  public  worsliip  of  God,  as  hereinbefore  specified,  and  to  no  other  uses  or 
purposes  whatever;  otherwise,  the  same  to  revert  to  said  corporation  of  the  Canal  Bridge, 
as  above  mentioned."  Afterwards,  the  grantors  extended  the  time  within  which  the  school- 
house  might  be  built.  B  and  others  conveyed  said  lot  to  S  and  others,  in  trust  for  a  reli- 
gious society  that  had  been  incorporated,  to  be  held  on  the  trusts  and  conditions  expressed 
in  the  deed  of  the  original  grantors,  made  to  B  and  others.  The  meeting-house,  pansonage- 
house,  and  scliool-liouse,  were  built  on  said  lot,  and  were  finished,  to  the  satisfaction  of  the 
original  grantors,  within  the  times  mentioned  in  their  deed,  and  afterwards  extended  by 
them.  Afterwards  another  house,  connected  with  the  school-house,  was  built  on  said  lot, 
for  the  use  of  the  preceptor  of  the  school ;  a  vestry  and  two  shops  were  made  in  the  base- 
ment of  the  meeting-liouse,  and  the  shops  leased  for  secular  business;  the  land,  on  which 
the  parsonage-house  was  built,  was  mortgaged  for  a  debt  incurred  in  building  on  the  whole 
lot;  the  land,  on  which  the  school-house  and  preceptor's  house  were  built  was  leased  for  a 
long  term  to  an  incorporated  academy,  and  said  academy  mortgaged  the  same.  The  origi- 
nal grantors  entered  upon  the  land  originally  granted  by  them  to  B  and  others,  for  breaches 
of  the  conditions  in  their  deed,  and  brouglit  writs  of  entry  to  recover  the  wiiole  land,  as  for- 
feited by  such  breaches.  Held,  the  second  condition  in  said  original  deed  was  repui^nant  to 
the  previous  parts  of  the  deed,  and  was  void;  and  that  the  actions  could  not  be  maintained. 
Proprietors,  &c.  v.  Metliodist,  Ac,  13  Met.  335. 

A  person  conveyed  to  trustees  a  piece  of  ground,  for  the  purpose  of  having  a  public 
school-house  erected  thereon  ;  and  the  house  was  accordingly  buili.  Held,  the  grant  was 
not  forfeited,  merely  because  the  trustees  had  permitted  religious,  political,  and  temperance 
meetings  to  be  held  in  tlie  house,  at  times  when  such  meetings  did  not  materially  interfere 
with  any  school  taugiit  therein.     Broodway  v.  The  State,  8  Blackf.  290. 

Lands  were  sold  to  the  city  of  New  York  for  the  purposes  of  a  public  square,  upon  con- 
dition that  they  should  forever  be  used  and  appropriated  for  such  purposes  exclusively,  and 
that  the  corporation  should  immediately  proceed  to  regulate  the  land  granted,  and  enclose 
and  improve  it  in  the  manner  specified  in  the  conveyance.  The  corporation  joined  in  such 
deed,  under  the  corporate  seal,  and  covenanted  to  stand  seized  of  tlie  premises  for  the  pur- 
poses of  a  public  square  exclusively,  and  that  such  corporation  would  abide  by,  observe  and 
perform  the  conditions  imposed  upon  it  by  the  acceptance  of  sucii  agreement  and  convey- 
ance. Held,  the  corporation  was  bound  to  perform  the  conditions  specified  in  the  deed,  and 
liable  in  damages  to  the  grantor  for  the  non-performance  thereof  Stuyvesant  v.  Mayor,  &c., 
11  Paige,  414. 

Held,  also,  that  the  grantor  might,  at  his  election,  re-enter  for  breach  of  the  conditions, 
bring  an  action  for  damages  sustained  by  the  breach  of  the  covenants  of  the  corporation,  or 
file  a  bill  in  equity  for  specific  performance.     lb. 

Whore  land  was  conveyed  to  trustees,  to  erect  a  Roman  Catholic  church,  and  lay  out  a 
place  of  burial,  with  a  condition  that,  if  the  church  was  not  erected,  and  the  remainder  of 
the  lot  appropriated  for  burial  purposes,  the  deed  should  be  void.  &c.,  and  no  cliurch  was 
ever  erected  on  the  lot,  but  a  church  was  erected,  by  the  same  society  of  Christians,  upon  a 
lot  in  the  neigliborhood,  and  the  lot  in  question  was  used  exclusively  as  a  place  of  sepul- 
ture ;  and,  the  corporation  of  Baltimore  being  about  to  sell  the  lot  for  non-payment  of  a 
paving  tax.  the  pastor  of  the  church  and  one  of  the  congregation  filed  a  bill  tor  an  injunc- 
tion ;  held,  neither  of  tlie  complainants  ha  i  any  interest,  legal  or  equitable,  for  the  protec- 
tion of  which  they  could  claim  the  interposition  of  a  court  of  equity.  Dolan  v.  The  Mayor, 
Ac,  4  Gill,  394. 

Under  the  New  York  Statute,  (1  Rev.  Sts.  346,)  providing  that  a  diversion  of  salt  works 
to  other  purposes  than  the  manufacture  of  salt  shall  work  a  forfeiture  of  the  leasehold  estate, 
the  partial  diversion  of  a  lot,  as  for  the  erection  of  a  dwelhng-house,  &c.,  will  not  work  a 
forfeiture.     Hasbrook  v.  Paddock,  1  Barb.  635. 


CHAP.  XXVII.]  ESTATK  ON  CONDITION,  ETC.  865 

the  deed  itself  or  some  other  instrument  to  wliicli  it  refers  ;  as,  for 

Ami,  if  it  did,  n  subsequent  liolilor  of  tho  leasehold  estate,  under  an  agreement  for  an  ox- 
cliaiijre  ofit  forotiier  hinds,  f-aimot  take  advaiitape  of  it  for  the  purpose  of  avoidiii;:?  such 
agreement,  alter  lie  iiad  quietly  occupied  (or  several  years,  and  tho  other  party  had  made 
larL'C  iniprovoiiieuts  on  the  huid  received  by  him  in  exclianf;c  ;  such  partial  diversion  being 
known  to  him  at  t!ie  time  of  makin<;  tiio  agreement,  and  the  statute,  making  a, diversion  a 
forfeitiiro.  bein^r  a  public  law,  of  whicli  he  was  bound  to  take  notice  ;  arulAvliere  such  forfei- 
ture, if  any,  had  been  waived  by  the  people  and  a  renewal  of  the  lease  pranted.     lb. 

Coniril>utors  to  a  fund,  on  condition  that  a  literary  and  theological  senn'nary  shall  be 
located  permanently  in  a  specified  place,  and  in  consideration  thereof,  whicli  is  accordingly 
done;  have  a  right  to  apply  for  an  injunction,  to  prevent  an  illegal  and  unauthorized  re- 
niovnl  of  the  seminary  to  another  place.     Ilascali  i'.  Tho  Madison,  Sec,  8  Barb.  174. 

AVhero  A  and  15  made  a  parol  agreement  with  tiie  inhabitants  of  a  town  and  its  neighbor- 
hood, that  they  would  give  the  ground  for  a  church  and  graveyard  for  the  use  of  two  con- 
gregations, if  tiie  members  of  the  congregations  and  the  neiglibors  would  erect  the  hou.se  of 
worship  and  open  a  graveyard  on  the  premises;  and  the  church  or  meeting-house  wa8 
erected  in  consequence,  and  the  graveyard  opened  at  the  expense  of  said  congregations  and 
other  charitable  neighbors;  held,  that  the  agreement  was  not  within  the  statute  of  frauds; 
that  A  and  B  stood  seized  of  the  premises  as  trustees  for  the  use  of  tho  two  congregations  ; 
and,  upon  a  sale  b}'  the  siierilT  under  a  judgment  against  A,  the  slierifl''s  vendee  acquired 
the  title  of  A,  suliject  to  the  trust,  and  became  himself  a  trustee  for  the  original  uses. 
Beaver  v.  Fiison,  8  Barr,  327. 

The  question  sometimes  arises,  whether  certain  terms  of  limitation  create  merely  a  charge 
upon  land  given  to  one  person,  for  the  benefit  of  another,  or  a  condition,  by  breach  of  which 
the  estate  is  forfeited.  Tiius,  a  testator  devised  all  his  real  estate  to  his  sons,  by  their  pay ing 
to  each  of  his  daughters  so  much  "out  of  the  estate."  This  payment  not  being  made,  ono 
of  tiie  daughters  brinys  a  writ  of  entry  for  a  part  of  the  land,  as  tbrfeited  liy  breach  of  condi- 
tion. Held,  the  sons  took  an  absolute  estate  in  fee,  charged  witli  tiie  legacies,  not  an  estate 
on  condition;  tliat  this  charge  would  follow  the  property  into  the  hands  ot  any  purchaser, 
with  notice;  but  that  the  present  action  could  not  be  sustained.  Taft  v.  Morse,  4  ilet.  523  ; 
ace  Morancy  v.  Buford,  1  M'Lean,  195.  See  Fox  v.  Phelps.  17  Wend.  393.  Crawford  v. 
Severson,  5  "Gill  443;  Hackadorn,  &c.,  11  Penn.  86;  "VVriglit,  &c.,  2  Jones,  256.  Devise  to 
a  son  of  the  testator,  he  2^cyin9  his  younger  brother  £100.  Held,  a  charge.  Luckett  v. 
While,  10  Gill  &  J.  480.  The  following  are  some  other  cases  of  conditional  devises,  "I 
will — that  loth  to  offend  by  the  word  pay,  &c.,  to  11  and  his  wife  I  wish  their  acceptances 
of  twenty  five  acres  of  land,"  &c.  The  testatrix  lived  in  H's  family,  who  afterwards  sued 
the  executor  for  her  board,  but  without  success.  Held,  a  conditional  devise,  whicli  H  elected 
to  relinquisli  by  bringing  tiie  suit.  Ilapgood  v.  Houghton,  22  Pick.  480.  Devise  to  A  and 
B,  eons  of  the  testator,  of  all  his  real  estate,  on  condition,  if  either  made  any  claim  on  the  es- 
tate, he  should  have  no  right  under  the  will.  A  made  such  claim,  and  received  payment 
from  the  executor.  Held,  a  forfeiture  of  his  moiety,  which  passed  to  the  heir.o.  Sackett  v. 
Mallory,  1  Met.  355.  Devise  of  a  fractional  part  of  certain  land,  "to  be  taken  by  the  devi- 
see where  he  shall  choose  or  select,''  &c.  Held,  not  a  condition  precedent  to  the  vesting  of 
the  estate,  but  the  devisee  becanie  atenantin  common,  with  a  right  of  selection.  Brown  v. 
Baih'y,  1  Met.  254.  Devise — "I  will  that  A  shall  be  supported  outof  my  estate — and  shall 
have  the  use  of  the  north  room  in  my  house,"  while  single.  If  she  marries.  "1  give  her 
$150,  to  be  paid  her  by  my  son  B  in  full  of  all  demands."  B,  being  devisee  of  the  whole  es- 
tate, gave  bond  for  payment  of  del)ts  and  legacies,  and  afterwards  conveyed  tho  land  to  C,  ^ 
who  liad  notice  of  the  above  devise.  Held,  a  charge  upon  the  real  estate  (A  having  never 
marrii'd  )  if  the  personal  was  insufficient,  to  be  enforced  either  by  a  suit  on  the  fjond  or 
against  C.     Siiehlon  v.  Purple,  15  Pick.  528. 

Di-vi.se  to  A,  a  .son  of  the  testator,  of  three  lots  of  land,  "by  his  paying  the  other  children 
towards  their  share  of  tny  estate,  $300;"  and  of  the  residue  of  his  estate,  to  his  chihiren. 
Held,  a  cli.-irge  on  the  land  of  A.  Ward  v.  Ward,  15  Pick.  511.  See  Button  v.  Button,  2 
Beav.  25G;   Veazey  v.  Whitehouse.  10  N.  H.  409. 

A  will  contained  legacies  and  a  devise  to  A,  with  a  condition  annexed;  proceedi'd  to  give 
legacies  in  B;  and,  by  a  subsequent  clause,  ordered  that  A  should  pay  all  debts.  Held,  this 
was  noi  a  mere  personal  char.'C  upon  A,  but,  with  the  legacies  to  B,  a  charge  upon  the  real 
estate.  Sands  v.  Champlin,  1  Story,  376.  A  devise,  in  re.t]m-t  thereof  charging  tho  devisee 
with  debts  and  le;iacies.  is  inrem,  and  a  char.u:e  upon  the  propertj-.     lb. 

Devise  on  condition  of  maintaining  tlie  testator's  widow  for  life.  If  the  devi.see  refu.se  to 
accept,  and  perform  the  condition,  the  devise  is  void,  and  the  heirs  may  enter.  Stone  v.  Uux- 
ford,  8  Bla.kf  452. 

A  t-stator,  in  one  clause  of  his  will,  directed  that  his  wife  should  "  have  a  decent  and 
conifbrtaiilo  sufiport  to  be  derived  from  all  his  lands  and  tenetnents  "  In  a  subsequent  clause, 
he  di'Vised  to  his  .son  .\,  in  fee-simple,  a  part  of  his  lands,  "sul>ject  nevertheless  to  a  charge 
of  live  hundred  dollars,  to  be  paid  by  him,  his  heirs,  &c.,  to  his  brother  B,  as  soon  as  he,  the 


366 


ESTATE  ON  CONDITIOX,  ETC. 


[CHAP.  XXVII. 


instance,  a  condition  in  a  lease,  that,  if  the  rent  shall  not  be  paid  at  the 
day,  the  lessor  may  re-enter.(l)(a) 

4.  Conditions  aie  either precet/e/i^  or  subsequent;  the  former  must  be 
performed  before  the  estate  will  vest,  the  latter  enlarge  or  defeat  an 
estate  already  created. 

5.  Whether  a  condition  shall  be  regarded  as  precedent  or  subsequent, 
depends  not  on  any  form  or  location  of  word.s,  but  on  the  fair  construc- 
tion of  the  contract,  and  plain  intention  of  the  parties.('2) 

6.  Ifi  in  case  of  a  will,  the  particular  clause  in  question,  or  the  whole 
will,  indicates  that  the  condition  must  be  performed  before  the  estate 
can  vest,  the  condition  is  precedent.  If  the  act  prescribed  does  not 
necessarily  precede  the  vesting  of  the  estate,  but  may  accompany  or 
follow  it,  the  condition  is  subsequent.(3) 

7.  Where  covenants  go  to  the  whole  of  the  consideration  on  both 
sides,  they  are  conditions  precedent ;  where  only  to  a  part,  otherwise; 
and  each  party  must  resort  to  his  separate  remed}',  because  the  dama- 
ges might  be  unequal. (4) 

8.  Conveyance  in  fee,  reserving  a  life  estate  in  a  part  of  the  land. 
"This  deed  is  made  and  to  have  effect  on  the  following  conditions;" 
viz.,  payment  of  money  at  divers  times  to  several  persons.  The  fee 
passes,  upon  condition  subsequent. (5) 

9.  A  testator  gave  a  large  amcmnt  of  lands  to  his  wife  for  life,  and 
all  his  real  estate  at  her  death  to  A,  on  condition  of  his  marrying  a 
daughter  of  B  and  C,  who  at  the  making  of  the  will  had  no  child. 
Held,  the  words  of  gift  being  in  prcesenti,  "I  give,"  &c.,  imported  an 
immediate  interest ;  that,  in  regard  to  the  portion  devised  to  the  wife, 
inasmuch  as  B  and  C  were  childless  at  the  making  of  the  will,  the  tes- 
tator evidently  did  not  contemplate  that  A  would  marry,  according  to 
the  condition,  during  the  life  of  the  wife,  and  therefore  intended  that 


(1)  Lit.  328. 

(2)  Thorp  V.  Thorp,  12  Mod.  464;  New- 
kirk  V.  Same,  2  Caines,  352  ;  Barruso  v. 
Madan.  2  John.  148  ;  Brockeubroug^h  v.  "Ward, 
4  Rand.  352;  Green  v.  Thomas,  2  Fairf.  318; 
Finlav  v  King,  3  Pet.  374:  Tompkins  v.  El- 
liot, i  Wend.  496  ;  7  Gill  &  J.  240  ;  Gardiner 
V.  Corson,  15  Mass.  500;  Barry  v.  Alsburj, 
6  Lit.  151  ;  Passmore  v.  Moore,  1  J.  J.  Mar. 
591;  Dallman  v.  King,  4  Bing.  N.  105; 
Turner  v.  Tebbult,  2  Y.  &  Coll.  Cha.  225. 
Thompson  v.  Bright,    1   Cuah.  420;   McCnl- 


lough  V.  Cox,  6  Barb.  386;  Houston  v.  Spru- 
ance,  4  Harring.  117;  Sbinn  v.  Roberts,  1 
Spencer,  435. 

(3)  3  Pet.  374. 

(4)  Boon  V.  Eyre,  1  H.  Blackf.  273,  n. 
See  Barry  v.  Alsbury,  6  Lit.  151 ;  Minister, 
&c.  V.  Bradford,  8  Cow.  457;  20  John.  12; 
Johnson  v.  Reed,  9  Mass.  78  ;  JBrockenbrough 
V.  Ward,  4  Rand.  352;  Clopton  v.  Bolton, 
23  Miss.  78. 

(5)  Howard  v.  Turner,  6  Greenl.  106. 


said  B,  shall  have  completed  his  studies,  &c. ;  a  good  and  sufficient  voucher  for  the  payment 
of  the  said  sum  of  five  liundred  dollars,  &c.,  shall  vest  in  him,  his  heirs  or  assigns  forever,  a 
good,  pure  and  absolute  estate  of  inheritance  in  the  said  lands  and  tenements."  Held,  not- 
withstanding this  charge  in  favor  of  B,  the  land  so  devised  was  also  subject  to  its  propor- 
tionate share  of  the  charge  in  favor  of  the  wife.     Baird  v.  Baird,  7  Ired.  Eq.  265 

Wliere  an  estate  is  devised  on  condition  of,  or  subject  to,  the  payment  of  a  sum  of  money, 
or  where  an  intention  to  make  an  estate,  specifically  devised,  the  fund  for  the  payment  of  a 
legacy,  is  clearly  exhibited;  such  legacj-  is  a  charge  upon  the  estate;  and  equity  may  de- 
cree, that  the  person  in  whom  the  estate  is  vested  shall  execute  the  trust,  although  he  be 
an  heir  of  the  testator,  who  has  taken  the  estate  upon  the  devisee's  declining  to  accept  it. 
Bugbee  v.  Sargent,  27  Maine,  338. 

(a)  Conveyance,  "subject  to  the  conditions  and  obligations  contained  in  an  agreement 
between  the  parties."  Hehi,  a  valid  legal  condition  was  thereby  created,  upon  breach  of 
which  the  grantor  could  recover  the  land  even  from  an  execution  purchaser  of  the  grantee's 
estate.     Bear  v.  Whisler,  7  Watts,  144. 


CHAP.  XXVII.]  ESTATE  ON  CONDITION,  ETC.  867 

Le  should  take  at  licr  death,  wliethcr  he  had  tlui.s  married  or  not ;  that 
there  was  no  ground  for  any  disiuielion,  with  re.speet  to  the  eondition, 
between  this  and  the  other  j)art  of  the  estate ;  and,  therefore,  that  the 
devise  of  the  whole  was  on  eondition  subsequent,  ftnd  took  elf'eet  im- 
mediately, subjeet,  as  to  a  part  of  the  land,  to  the  wile's  possession  for 
lile.(l)  It  would  have  been  otherwise,  it  seems,  if  the  devise.had  been, 
"I  devise  my  lands  to  A  on  his  marrying  B."(2)(c/)         — 

10.  There  is  one  case,  where  the  distinction  between  conditions  pre- 
cedent and  subsequent  becomes  very  impoilant,  the  same  event  produ- 
cing, in  the  two  cases,  directly  opposite  elleets.  It  will  be  seen  that,  if 
a  precedent  eondition  becomes  impossible,  by  act  of  God,  no  estate  can 
vest ;  whereas,  if  the  condition  is  a  subsequent  one,  the  estate  becomes 
absolute.     So,  if  the  condition  be  iHegaL{S) 

11.  A  condition  may  be  annexed  to  any  estate  whatsoever. 

12.  Jt  is  said  that,  as  to  things  executed,  a  condition  must  be  created 
and  annexed  to  the  estate,  at  the  time  of'  making  it.  Hence,  when  a 
condition  is  made  by  a  separate  deed,  this  must  be  sealed  and  delivered 
at  the  same  time  as  the  principal  deed.  This  point  arose  in  ihj  reign 
of  Kdward  III,  who,  having  conveyed  lands  to  certain  noblemen,  at- 
tempted, subsequently,  to  annex  a  condition  to  such  conveyance.  But 
the  condition  was  held  void   by  all  the  judges  and  sergeants.(4)     But 

(1)  Finley  v.  Kiripr,  3  Pel.   374.     See  Tay- ,  son,  9  Wheat.  325;  Myers  v.  Daviess,  10  E. 
lor  V.  Mason,  9  Wheat,  325.  Mon.  394. 

(2)  Jb.  375.  (.1)  Co.  Lit.  236  b;  Touch.  126;  2  Cruise.  5. 

(3)  Infra,  ch.  23,  sec.  15.    See  Taylor  v.  Ma- ) 


(a)  A  deed  from  the  trustees  of  a  town  contained  the  stipulation,  that  the  grantee  should 
"ailow  all  people  to  pass  and  repass,  to  fish,  fowl  and  hunt,"  &c.,  on  the  granted  premises. 
Held,  this  was  not  a  reservation  or  exception,  but  a  condition  subsequent,  upon  breach  of 
whicli  the  title  might,  by  proper  proceedings,  be  divested.     Parsons  v.  Miller,  15  Wend 
564. 

Devise  of  land  to  a  town,  to  use  and  improve  forever,  and  not  be  sold,  but  rented  out,  and 
the  rents  applied  to  support  tlie  ministry  in  the  town.  Held,  a  condition  subsequent. 
Brigham  v.  Shattuck,  10  Pick.  309.  Devise  to  a  son  in  fee,  "on  condition  that,  alter  my 
decease,  he  becomes  a  perfectly  sober  man  ;"  if  not,  the  property  to  descend  to  his  wife  and 
children  in  fee.     Held,  a  condition  precedent.     Lewisburg  v.  Augusta,  2  W.  &  Serg.  65. 

A,  having  an  absolute  appointment  by  deed  or  will  over  an  estate,  devised  it  to'^her  hus- 
band B,  with  power  to  sell  and  dispose  of  tiie  same,  or  to  raise  any  sum  of  money  thereon 
by  mortgage,  as  he  should  ihink  proper,  "provided  tliat  such  part  of  all  and  every  sum  and 
sums  of  money,  so  as  aforesaid  raised  by  the  said  B,  either  by  sale  or  mortgage,  as  shall  bo 
unexpended  at  my  (his)  decease,  shall  be  charged  upon  the  houses  belonging  to  B,  situate, 
&a,  to  be  disposed  of  immediately  after  the  decease  of  the  said  B,  that  sum  to  be  paid  to  my 
four  nieces."  She  also  devised  the  reversion  of  the  estate  to  her  four  nieces,  in  case  it 
should  be  in  mortgage ;  and,  if  the  estate  should  not  be  sold  or  mortgaged  by  B  then  she 
devised  the  same  to  her  said  four  nieces,  as  tenants  in  common  in  fee.  B  mortgaged  the 
estate,  and  died,  never  having  charged  his  houses  with  any  part  of  the  mort}:age-money. 
Held,  the  condition  was  not  a  condition  precedent,  and  the  mortgage  was  valid.  Watkius 
V.  William.s,  10  Eng.  Law  and  Eq   23. 

A,  and  B  his  wife,  conveyed  real  estate  to  C  and  D,  on  condition  that  the  grantors  should 
be  pemitted  to  continue  to  occupy  the  house  on  the  premises,  and  that  the  grantee.",  their 
heins,  executors  and  administrators,  should  furnish  the  grantors  a  decent  and  comtbrtable 
sup|iort  during  their  (the  grantors')  lives.  Held,  the  condition  was  a  condition  subsequent; 
and,  if  the  possession  of  .said  house  and  a  s\iitable  support  were  furnished  to  B,  after  the 
death  of  A,  she  might  claim  her  dowc-r  ni  the  premises.     Hefner  v.  Yount,  8  Blackf  455. 

Where  land  is  devised  to  A,  on  condition  that  he  shall  pay  debts  and  a'lcgacy,  the  estate 
vests  in  A  immediately  on  the  testator's  death,  and  such  payment  is  a  condition  subsequent. 
Horsey  v.  Horsey,  4  Harring.  517. 


308  ESTATE  ON  CONDITION,  ETC.  [CHAP.  XXVII. 

things  executor?/,  such  as  rents,  annuities,  &c.,  maj^  be  restrained  bj  con- 
ditions annexed  to  them  after  their  creation. (l)(a) 

13.  A  condition  must  determine  the  whole  estate  to  which  it  is  annexed. 
Thus,  if  a  feoffment  is  made  on  condition  that,  upon  the  happening  of 
a  certain  event,  the  feoffor  may  re-enter  and  hold  for  a  time,  or  the  es- 
tate shall  be  void  for  apart  of  the  time  ;  or,  if  a  lease  be  made  for  ten 
years  on  condition  that  in  a  certain  event  it  shall  be  \o\d  for  fve ;  these 
conditions  are  void.  But  a  condition  may  legallj'  be  confined  to  a  jjor- 
iion  oj  the  land  which  is  conveyed.  Thus,  there  may  be  a  conveyance 
of  six  acres,  with  a  condition  that,  upon  a  ceitain  event,  it  shall  be  void 
as  to  three.  So,  also,  in  case  of  a  lease,  it  has  been  seen  (ch.  16,)  that 
there  may  be  a  condition  for  the  lessor  to  re-enter  for  non-payment  of 
rent,  and  hold  till  he  is  satisfied.{2) 

14.  Conveyance  of  an  estate  tail,  conditioned  to  be  void  in  a  certain 
event,  as  if  the  tenant  in  tail  were  dead.  Held,  inasmuch  as  the  death 
of  the  tenant  would  not  terminate  the  estate,  but  only  his  death  without 
issue,  this  condition  was  void. (3) 

15.  A  condition  can  be  reserved  only  to  the  grantor  or  lessor,  or  his 
heirs,  not  to  a  third  person.  This  rule  is  founded  upon  the  general 
principle  of  law,  which  forbids  maintenance  or  the  purchase  of  disputed 
itles.  (See  Maintenance.)  But  heirs  shall  have  the  benefit  of  a  condition, 
though  not  specially  named. (4)(6) 

If).  It  is  a  legal  maxim,  that  nothing  which  lies  in  action,  entry,  or  re- 
entry, can  be  granted  over.  Upon  this  principle,  at  common  law,  a  con- 
dition, in  a  lease,  for  re-entry  upon  non-payment  of  rent,  did  not  pass 
to  an  assignee  of  the  reversion,  even  though  the  tenant  attorned  to  him. 
This  rule,  however,  is  changed  by  statute. (5) 

17.  There  are  manj^  circumstances  which  may  render  a  condition 
void. 

18.  Impossible  conditions(c)  are  void.  So  those  which  become  impos- 
sible by  the  act  of  the  grantor.  Thus,  where  the  King  of  Great  Britain 
granted  a  charter  of  a  town  in  Vermont,  (then  New  Hampshire,)  in 
part  to  the  defendants,  an  incorporated  society,  reserving  a  rent  of  one 

(1)  Co.  Lit.  237  a.  ,  Lit.  214  a  ;  TVinn  v.  Cole,  Walk.  419 ;  King's, 

(2)  Corbet's  case,  1  Rep.  86  b.  &c.  v.   PeJliam,  9  Mass.    501.     See  I'arker  v. 

(3)  Jertiiin  v.  Arscott,  1  Rep.  85;  6  lb.  40.    Nichol.?,  7  Pick.    1 II  ;   7  Conn.  201. 

(4)  Jackson  v.  Tpoping,  1  Wend.  388;  Co.)      (5)  Lit.  sec.  347. 


(a)  Tliis  distinction  seems  to  be  now  of  no  practical  importance,  however  well  founded  in 
the  technical  rules  of  the  ancient  common  law.  Things  executed  may  undoubtedly  be  modi- 
fied, subsequently  to  their  creation,  by  the  consent  of  both  parties;  and  things  executory 
cannot  be,  without  such  consent. 

(b)  For,  as  tliey  are  tlie  persons  prejudiced  by  the  grant  or  lease,  tiiej'  ought  to  have  the 
same  means  as  their  ancestors,  of  recovering  the  estate.  See  cli.  28,  sees  6,  44.  Devise 
to  a  son  oftlie  testator  of  a  farm  in  fee-simple;  on  condition  that  liis  daughters  should  have 
the  use  and  occupation  of  a  room  in  his  house,  food,  &c.,  while  liie}-  remained  unmarried. 
Held,  upon  breacli  of  condition,  the  daughters  miglit  recover  their  shares  of  the  estate,  :-s 
heirs  to  their  father.      Hogeboom  v.  Hall,  24  W'end.  146. 

So  a  residuary  devisee  may  avail  himself  of  a  condition  annexed  to  a  specific  devise.  Hay- 
den  v.  Stoughton.  5  Pick.  528;  Brigham  v.  Siiattuck,  10,  306;  Clapp  v.  Stougliton,  lb.  463. 

In  Pennsylvania,  a  right  of  entry  may  be  reserved  to  the  grantor's  assiy7is  ;  under  which 
a  purciiaser  on  execution  may  claim  for  a  forfeiture,  though  subsequent  to  the  purchase.  Mc- 
Kissick  V.  Pickle,  16  Peiin.  140. 

(c)  ■'  Impossible  conuitions  mean  a  physical  impossihility,  and  not  the  want  of  power  in  the 
party."     1  Swift,  93. 


CHAP.  XXVII.]  ESTATE  ON  COXDITIOX,  ETC.  ,3G9 

sbillino;  for  every  hundred  acres,  after  the  first  ten  years,  tohe  paid  an- 
nualb/lo  the  grantor^  in  his  council  chamber  in  Porl-snioidh,  or  to  such  ofH- 
cer  as  should  be  appointed  to  receive  it;  held,  the  vSeparation  of  the 
two  countries,  an  act  of  the  grantor,  rendered  impossible  a  payment  at 
the  place  named  ;  and,  no  other  place  having  been  appointed,  nor  any 
ofTicer  to  receive  it,  the  people  of  Yermont,  as  successors, to  tLc  king, 
could  not  claim  a  forfeiture.(l) 

19.  7//'.;7a/ conditions  are  void.  These  are  :  1.  To  do  something  that 
is  mahuninse  or  inahim  prohibitum.  2.  To  omit  some  duty.  3.  To  en- 
courage such  act  or  omission. (2)(«) 

20.  It  is  said,  that  a  condition  is  a  divided  clause  from  the  grant,  and 
therefore  cannot  either  expressly  or  by  implication  frustrate  the  grant, 
in  rei^ard  to  any  of  its  inseparable  incidents.  Hence,  conditions  repug- 
nant to  the  nature  of  the  estate  are  void.  As,  for  instance,  a  condition 
in  a  conveyance  of  the  fee,  or  even  a  devise  of  an  estate  for  life,  that 
the  grantee  shall  not  take  the  profits,  or  alienate;  or  a  condition  in  a 
lease  to  three  persons,  that  one  of  them  shall  not  demand  the  profits, 
or  enter  upon  the  land  during  the  lives  of  the  others.  So  a  condition, 
annexed  to  an  estate  tail,  that  the  donee  shall  not  marry;  because, 
without  maniage,  he  could  not  have  an  heir  of  his  body ;  or  that  he 
shall  not  suffer  a  recovery. (3)(/>) 


(1)  People,  &c.  V.  Soc'y,  &c.  1  Paine,  652 ; 
U.  S.  V.  Arredondo,  6  Pet.  691;  liugliea  v. 
Edwanis,  9  Wheat.  489 ;  Wliitney  v.  Spen- 
cer, 4  Cow-   39. 

(2)  Miichel  v.  Reynolds,  1  P.  Wms.  189. 


8  T.  R.  61 ;  Co.  Lit.  206  b,  223  a;  Moore  v. 
Savil,  2  Leon.  132;  Jetik.  243  ;  Dyer.  343  b ; 
Co.  Lit.  223  b  ;  Newton  v.  Reid,  4  Sim  141  ; 
Hodges  V.  Hodges.  2  Ciisli.  45.5  ;  McCnllough 
V  Gilraore,  II  Penn.  370;  Blacket  r.  Lamb, 


(3}  Lit.  360-1 ;  Hob.  170  ;  Doe  v.  Carter,  '  10  Eng.  L.  &  Equ.  5. 

(a)  "There  are  three  sorts  of  conditions  to  be  rejected:  1.  Such  as  are  repugnant; 
2.  Those  impossible  in  their  creation  ;  3.  Those  mala  in  se."  Harvey  v.  Aston,  1  Aik.  361 ; 
Com.  R   7  26;   Willes,  83. 

(b)  Rooliford  v.  Ilackman,  10  Eng.  L.  &  Equ.  64.  Devise  of  real  estate  to  a  wife  for  life, 
and  "the  remainder  of  tlie  testator's  estate,  in  possession  or  reversion,  to  liis  five  ciiildren, 
to  be  equally  divided  to  and  among  tht-m  or  their  heirs  respectively,  always  intending  that 
none  of  his  children  shall  dispose  of  tiieir  part  of  the  real  estate  in  reversion,  before  it  is 
legally  a.ssigned  to  tliem."  Held,  the  ciiildren  took  a  vested  remainder  in  tlio  real  estate 
given  to  the  wife  for  life,  and  the  above  restriction  upon  alienation  was  void.  Hall  v.  Tufts, 
18  Pii-k.  455. 

Lease  in  perpetuity,  with  a  condition  and  covenant  thnt,  upon  every  sale  of  the  land,  the 
tenant  or  his  assigns  siiould  obtain  the  written  consent  of  the  reversioner,  and  oQ'er  him  the 
riglil  of  pri'-cmplion,  and,  if  sold  after  such  offer,  that  one  tenth  of  the  purchase-money 
should  be  paid  to  the  lessor.  Held,  this  provi.sion  was  a  restraint  and  a  fine  upon  aliena- 
tion, against  the  policy  of  the  law,  upon  which  the  remedy,  if  any,  was  at  law,  but  which 
equity  would  not  aid  in  enforcing.  Livingston  v.  Stickles,  8  Paige.  398.  A  condition  in  a 
lease,  that  the  tenant  shall  not  sell  any  wood  or  timber  without  permission,  is  valid.  Yer- 
planck  v.  Wright,  23  Wend.  506. 

But,  in  a  lease  for  two  years,  a  provi.so  that  the  lessee  occupy  but  one,  is  void.  Scovell  v. 
Cabell,  Cro.  Eliz.  107.  So,  in  the  grant  of  a  house,  a  condition  not  to  meddle  with  the 
shops,  whieh  are  part  of  the  iiouse.  Hob.  170.  See,  as  to  insensible  and  absurd  conditions. 
Doe  V.  Carew.  2  Ad.  k  Kll  (N.  S.)  317. 

The  owner  of  lots  of  land  on  the  Eust  River,  opposite  New  York,  improved  one  of  them 
at  a  great  expense  for  a  cottage  residence  and  garden,  and  sold  a  part  of  the  other,  with  the 
agreenunt  that  the  grantee  sliould  only  use  it  lor  a  place  of  residence;  and  the  conditions 
in  the  deed  were,  that  the  grantee  should  not  use  the  lot  in  any  way,  or  for  any  business, 
which  miu'lit  be  offensive  to  the  occupant  of  the  adjoining  lot,  or  that  would  tend  to  deterio- 
rate or  lessen  its  value,  and  the  grantee  was  not  to  u.se  the  lot  as  a  stone  quarry.  The 
grantee  leased  a  part  of  the  lot,  lor  a  railroad  to  carry  stone  from  a  neighboring  quarry  to  a 
wharf,  whieh  he  gave  the  lessees  leave  to  build  opp'  site  the  lot.  Held,  on  a  bill  by  the 
grantor  for  an  injunction,  that  such  a  se  of  the  lot  would  be  a  breach  of  the  conditions  of 
the  deed,  and  that  the  grantee  and  his  lessees  could  be  restrained  by  an  injunction.     The 

Vol.  I.  24 


370  ESTATE  ON  COXDITIOX,  ETC.  [CHAP.  XXVII. 

21.  So  a  condition  annexed  to  a  devise  to  children,  in  these  words: 
"  in  case  they  continued  to  inhabit  the  town  of  H.,  otherwise  not."  la 
this  case,  only  one  of  the  devisees  lived  at  H.,  at  the  date  of  the  will, 
or  the  death  of  the  testator.  The  word  coniinue  was  therefore  held 
unmeaning.  Another  ground  was,  that  the  devisees  being  themselves 
heirs  at  law,  there  was  no  one  to  take  advantage  of  a  breach  of  condi- 
tion ;  inasmuch  as  the  residuary  devise  to  two  sons  of  the  testator,  ex- 
pressly excepted  this  portion  of  the  estate.  The  devise  was  declared 
repugnant,  unreasonable,  uncertain  and  nugatory.  But  Thompson,  J., 
dissented,  on  the  ground  that  the  condition  was  a  precedent  oiie.(l) 

22.  But  conditions,  prohibiting  only  what  is  contrary  to  law,  are 
valid.  Thus,  a  condition  against  alienation  in  mortmain^  or  a_uainst 
alienation  in  any  mode  which  is  invalid  in  law.  And  a  condition 
against  the  exercise  of  a  power,  which  is  not  incident  to  the  estate 
granted,  but  only  collateral^  and  conferred  by  a  special  statute,  is  valid; 
as,  for  instance,  a  condition  in  a  gift  in  tail,  that  the  donee  shall  not 
lease  for  three  lives  or  twenty -one  years,  as  authorized  by  Statute  32 
Henry  VIII.(2) 

28.  A  condition,  valid  at  the  time  of  creating  it,  cannot  be  affected 
by  any  change  in  the  law  pertaining  to  its  subject  matter. 

24.  Conveyance,  on  condition  the  grantee  shall  not  aliene,  till  he 
reaches  the  age  of  twenty-five  years.  Before  this  time  he  alienes,  and 
makes  a  second  conveyance  after  reaching  the  age  prescribed.  The 
first  deed  is  void,  and  the  last  valid.  When  this  condition  was  im- 
posed, twenty-five  was  the  age  of  majority  in  this  State  (Missouri.)  A 
subsequent  act  changed  it  to  twenty-one.  Held,  the  condition  was  still 
binding.(8) 

25.  It  was  formerly  held,  that  a  bond,  against  exercising  the  powers 
incident  to  an  estate,  was  valid.  (See  siqjro,  ch.  2,  sec.  56.)  Thus, 
where  a  son,  receiving  lands  from  his  father  in  tail,  gave  bond  that  he 
would  not  dock  the  entail,  and  afterwards  applied  to  Chancery  for  re- 
lief against  the  bond  ;  held,  it  was  a  valid  instrument.(4) 

2(3.  But  this  doctrine  is  said  to  be  extremely  questionable,  and  has 
been  denied  in  subsequent  cases.(5) 

27.  Thus,  where  successive  tenants  in  tail,  according  to  the  direction 
of  tRe  donor,  entered  into  mutual  obligations  not  to  aliene;  held,  in 


(1)  Newkerk  i'.  Xfwkerk,  2  Caines,  345. 

(2)  2  Cruise,  7  ;  Gray  v.  Blanchard,  8  Pick. 
289. 

(3)  Dougall  V.  Fryer,  3  Misso.  40. 


(4)  Co.  Lit.  206  b;  Freeman  v.  Freeman, 
2  Veru.  233  ;  ace.  Turner  v.  Johnson,  7  Dana, 
438. 

(5)  2  Cruise,  7. 


erection  of  a  wliarfwas  held  to  bo  especially  a  breach,  as  it  would  be  a  temptation  to  noc- 
turnal debauchees  to  frequent  tlie  neighborhood.     Seymour  v.  McDonald.  4  Saniit!  Cli.  502. 

A  conveyed  land  to  B  and  C,  his  wife,  with  the  conditions  th;it  <  acli  should  take  an  un- 
divided moiety,  and  tluit  C  should  not  incumber  her  part  or  sell  it,  without  B's  consent,  and 
that  she  should  have  tlie  power  to  devise  the  same.  Held,  these  conditioiis  were  not  void, 
and  the  appointment  made  by  C  in  her  will  was  a  valid  one,  and  could  not  be  set  aside  by 
her  or  B's  iieirs.     Hicks  v.  Cochran,  4  Edw.  Ch.  107. 

A  condition  annexed  to  a  devise,  that  tlie  person  who  may  have  the  rij^ht  is  to  procure 
an  act  of  tlie  leirislalure  for  ciiange  of  name,  "together  witli  his  taking  an  oath  hetbre  he 
has  possession,  that  he  will  not  make  any  cliange  during  his  lile"  in  the  will,  relative  to  the 
real  estate;  ie  repngnant  and  void.     Taylor  v.  Mason,  9  Wheat.  325. 

A  condition  in  a  con\cyance,  that  the  grantee  shall  keep  a  saw  and  grist  mill  on  the 
land  doing  business,  is  valid ;  and  a  breach  thereof  forfeits  the  estate.  Speny  v.  Pond,  5 
Ohio,  389. 


CHAP.  XXVI r.] 


ESTATE  ON  CONDITION,  KTO. 


871 


Chancery,  and  by  the  advice  of  Lord  Coke,  that,  as  tlicso  agrecnnents 
tended  to  a  perpetuity,  they  should  be  delivered  up  to  be  cancelled. 
The  same  decree  was  made,  in  case  of  a  bond  from  a  tenant  in  tail  not 
to  commit  \vaste.(l) 

28.  In  regard  to  estates  for  life  and  for  years,  it  lias  been  held,  that, 
if  a  lease  is  made  to  one  and  his  assi(/ns,  a  condition  against  assignment 
is  repugnant  and  void.  But  where  assigns  arc  not  named,  such  condi- 
tion is  valid,  though  not  favored,  but  looked  nearly  into  by  thecourts.(2) 
As  a  general  principle,  the  landlord,  having  the  ju.s  disponendi,  may 
annex  whatever  condition  he  pleases  to  his  grant,  provided  it  is  not 
illegal,  unreasonable,  or  against  public  policy.  It  is  reasonable  that  a 
lan(llord  should  exercise  his  judgment,  with  respect  to  the  person  to 
whom  he  trusts  the  management  of  his  estate.  It  is  a  matter  of  per- 
sonal conlidence,  fiuinded  on  a  knowledge  of  the  tenant's  honesty,  or 
skill  and  tliligence  in  iarming,{3)(o) 

29^  Lease  for  years,  on  condition  the  lessee,  his  executors  or  assigns 
should  not  aliene,  without  the  le>"Sor's  consent.  After  the  lessee's  death, 
his  administrator  assigned,  without  leave  of  the  lessor.  Held,  as  the 
administrator  was  an  assignee  in  law,  this  was  a  breach  of  the  con- 
dition.(4) 

30.  So  a  condition,  that  if  the  lessee  for  years,  his  executors  or  as- 
signs demised  the  land  for  more  than  from  year  to3'ear,  the  lease  should 
cease;  was  hehl  valid,  and  to  be  broken  by  a  devise  of  the  term. (5) 

81.  But  it  was  subsequently  decided,  that,  where  a  lessee  covenanted 
not  to  assign  his  term  without  consent,  a  devise  was  no  breach. (6) 

32.  A  condition  against  assignment,  either  by  the  lessee  or  his  assigns, 
without  the  lessor's  consent,  is  waived  and  put  an  end  to  by  an  assign- 
ment with  his  consent;  so  that  a  subsequent  assignment  by  the  first 
assignee  is  valid,  and  not  within  the  condition.  So  if  a  license  is  ob- 
tained, it  remains  in  force,  and  an  alienation  is  valid,  after  the  land- 
lord's death.(7) 

38.  An  under-lease  is  not  within  a  condition  against  assigning  over 
the  lessee's  estate.(/>)  So  held,  where  a  lessee  for  twenty-one  years  • 
covenanted  "  not  to  assign,  transfer  or  set  over,  or  otherwise  do  or  put 
away  the  said  indenture  of  demise,  or  the  premises  thereby  demised  or 
any  part  thereof,  to  any  person  or  persons  whomsoever,  without  the 
license  and  consent  of  the  lessor;"  and  afterwards  leased  for  fourteen 
years. 

34.  So,  where  the  condition  was,  that  the  lessee  would  not  assign 


(1)  Poole's  cnse.  Moo.  810;  Jervis  v.  Bru- 
toti,  2  Verii.  251. 

(2)  Stuktli-y  V.  Butler,  Hob.  170  ;  Co.  Lit. 
204  H,  223  b;  Crusoe  v.  BuRby.  H  Wil».  237"; 
iliiPgrave  v.  Kinjf,  5   Ired   Equ.  430. 

(:i)  Koe  V.  Galliers,  2  T.  R.  133-10. 


(4)  More's  case,  Cro.  Eliz.  2G ;  (Petinaiit's 
case,  3  Rep.  64.) 

(5)  Berry  v.  Taunton,  Cro.  KHz.  231. 

(6)  F.).v  V.  Swatin,  Styles,  483. 

(7)  Dumpor's   ease,  4  Rep.    119;  Wliitcb- 
cot  V.  Fo.\;,  Cro.  Jac.  398  ;  Co.  Lilt.  52  b. 


(a)  A  condition  is  to  be  distinguished  from  a  covenant  against  assigning,  &c.  The  latter 
is  merely  a  ground  tor  damages,  not  for  lorfeiture;  more  especially  where  the  lease  ex- 
pressly provides  a  forfeiture  for  waste,  non-payment  of  rent,  &c.  Spear  v.  Fuller,  2  N  H. 
174  Whether  a  liBsee,  with  such  a  covenant  in  the  lease,  can  pass  any  title  to  the  assignee, 
gu.  Ah  between  hira  and  audi  assignee,  the  transfer  is  valid,  and  suflicient  consideration 
Ibr  a  note.     lb. 

i/>)  >o  it  is  held,  that  the  les.see  may  associate  otheri  with  himself  in  the  enjoyment  of 
the  term.     Margrave  v.  King,  5  Ired.  Equ.  430. 


372  ESTATE  ON  CONDITION,  ETC.  [CHAP.  XXVIT. 

over  or  otherwise  part  with  the  indenture  or  the  premises  thereby 
leased,  or  any  part  thereof,  to  any  person,  &c. 

35.  But  in  case  of  a  lease  to  one,  his  executors,  &c.,  a  proviso  that 
the  lessee,  his  executors,  &c.,  shall  not  set,  let  or  assign  over  the  j:remi- 
ses  or  any  part  thereof,  embraces  an  under-lease  by  the  lessee's  admin- 
istrator. The  term,  for  the  purposes  of  assignment,  is  not  legal  assets. 
If  the  proviso  applied  in  its  ternis  only  to  the  lessee  himself,  it  might 
be  held  not  to  embrace  a  transfer  by  the  administrator. 

86.  Where  the  condition  requires  consent  in  writing,  a  parol  consent 
will  not  be  suflftcient. 

37.  Whether  a  consent  by  the  lessor  to  a  transfer  of  a  part  of  the 
premises,  is  a  waiver  of  the  condition  as  to  the  whole,  qu.{l) 

38.  Where  there  is  a  condition  against  any  transfer  of  the  lessee's 
estate,  if  he  confess  judgment,  through  a  warrant  of  attorney,  upon 
which  execution  is  taken  out  and  levied  upon  the  term  ;  this  is  no 
breach  of  condition,  but  the  term  will  pass  to  an  execution  purchaser, 
even  with  notice  of  the  proviso.  A  judgment  is  held  to  be  "  in  invitum  ;" 
and  the  case  is  merely  that  of  a  fair  creditor,  using  due  diligence  to 
enforce  payment  of  a  just  debt.{2) 

89.  Bat,  in  a  new  action  between  the  same  parties,  the  verdict  found, 
that  "  the  warrant  of  attorney  was  executed  for  the  express  purpose  of 
getting  possession  of  the  lease,"  in  which  purpose  the  tenant  concurred; 
and  it  was  held  that  the  lease  was  forfeited.  Lord  Kenyon  remarked, 
"  it  would  be  ridiculous  to  suppose,  that  a  court  of  justice  could  not 
see  through  such  a  flimsy  pretext  as  this.  Here  the  maxim  applies, 
that  wiiich  cannot  be  done^^er  directum,  shall  not  be  done  per  ohhquum. 
The  tenant  could  not  by  any  assignment,  under-lease  or  mortgage,  have 
conveyed  his  interest  to  a  creditor.  Consequently,  he  cannot  convey 
it  by  an  attempt  of  this  kind. "(3) 

39  a.  A  lease  gave  the  lessee  power  to  sell  his  interest,  on  obtaining 
the  lessor's  written  consent,  and  paying  him  one-tenth  of  the  purchase- 
money.  The  lessee  contracted  to  sell  his  interest,  and  received  the 
principal  part  of  the  purchase-money  ;  and  the  purchaser  went  into 
possession  under  the  contract,  but  received  no  actual  transfer  of  title. 
Held,  the  conditioa  must  be  construed  strictly  against  the  lessor;  and 
as  the  legal  estate  of  the  lessee  was  not  divested,  the  right  of  the  lessor 
to  the  tenth  of  the  purchase  money  was  incomplete,  and  he  was  not 
entitled  to  relief  in  equity.  Aliter,  however,  if  it  appear  that  the  legal 
estate  is  continued  in  the  lessee,  for  the  mere  purpose  of  evading  the 
covenant  or  condition,  the  equitable  title  having  been  transferred. (4) 

•iO.  A  condition,  that  the  lessor  may  re-enter  in  case  of  bankruptcy 
on  the  part  of  the  lessee,  has  been  held  valid. (a)  It  was  objected,  that 
such  a  principle  would  enable  the  lessee  to  hold  out  false  colors  to  the 
world,  and  that  the  condition  was  equivalent  to  a  proviso,  that  the 
lease,  though  absolutely  granted,  should  not  be  seized  under  a  commis- 
sion of  bankruptcy.  But  the  court  held,  that  there  was  the  same  rea- 
son for  making  this  provision,  as  for  providing  against  voluntary  as- 

(1)  Crusoe   v.   Buo;by,  3  Vila.  234 ;  2  Bl.        (2)  Doe  v.  Carter,  8  T.  R.  57. 
R.  766;  Jackson  v.    Harrison,  17  John.  66;         (3)  8  T.   R.  300-1. 
Roe  V.  Harrison,  2  T.  R.  425.  I      (4)  Livingston  v.  Stickles,  7  Hill,  253. 

(a)  It  is  waived  by  the  receipt  of  subsequent  rent.     Doe  v.  Rees,  4  Ring.  N.  384. 


CHAP.  XXVII.] 


ESTATE  ON  CONDITION,  ETC. 


373 


signments;  that  tberc  was  even  more  danger  of  the  estate  falling  into 
batl  hands  in  the  former  case  than  in  the  latter;  that  public  j)oliey 
favored  the  security  of  landlords;  that  the  mere  possession  of  land  was 
no  proof, of  ownership,  but  a  creditor  was  bouml  to  look  into  the  lease 
if  he  would  ascertain  the  title;  and  that,  althou;ih  if  the  lease  were 
granted  absolutely,  such  proviso  would  be  void  for  repugnancy,  yet 
here  there  was  an  express  limitation  to  terminate  the  estate  upon  the 
lessee's  beicoinini^  bankrupt,  a  stipulation  a;§ainst  his  own  act.  The  case 
was  compared  It)  that  of  a  lease  for  twenty-one  years,  on  condition  that 
the  tenant  should  continue  to  occupy  personally,  which  woukl  be  a 
valid  proviso.  It  was  also  suggested,  that  such  a  condition,  in  a  very 
long  lease,  would  be  liable  to  the  objection  of  creating  a  perpetuity.(l) 

41.  Some  cases  have  occurred,  in  which  leases  have  contained  a  con- 
dition against  the  lessee's  allowing  other  persons  to  occupy,  except 
under  certain  restrictions.  Thus,  where  there  was  a  stipulation  in  the 
lease,  that  "  if  the  lessee  suffer  more  than  one  person  to  every  100  acres 
to  resitle  on,  use  or  occupy  any  part  of  the  premises,  the  lease  shall  be 
voiil;"  held,  a  breach  of  condition,  for  the  lessee  to  let  parts  of  the 
premises  to  persons  for  a  year,  to  cultivate  for  shares,  in  the  proportion 
of  more  than  one  for  each  100  acres.(2) 

42.  But,  where  135  acres  were  leased,  and  the  lessee  covenanted  not 
to  permit  more  than  one  tenant  to  each  100  acres  to  reside  on  or  occupy 
the  premises ;  held,  it  was  no  breach  to  alU)W  one  tenant  besides  him- 
self to  occupy .(8) 

43.  It  is  the  doctrine  of  the  ecclesiastical  court  and  court  of  chan- , 
eery  in  England,  derived  from  the  civil  law,  that  conditions  in  restraint 
of  mirriatje,  annexed  to  bequests  of  personal  property,  are  void,  as 
against  public  policy,  except  where  there  is  a  devise  over  upon  breach 
of  condition.(a)  But  such  conditions,  annexed  to  devises  of  real  estate, 
have  generally  been  held  valid,  whether  they 'were  precedent  or  subse- 
quent. It  is  said,  there  can  be  but  one  true  legal  construction  of  these 
conditions  ;  and  therefor*.'  it  must  be  the  same  in  the  Court  of  Chancery, 
and  all  the  other  courts  in  Westminster  Hall,  The  meaning  of  the 
testator,  or  the  control  which  the  law  puts  upon  his  meaning,  cannot 
vary,  in  what  court  soever  the  question  chances  to  be  determined.(4) 

44.  Devise  to  the  testator's  wile  for  life  ;  then  to  his. granddaughter, 
A,  in  tail,  provided,  and  upon  condition,  that  she  married  with  consent 
of  the  wife  of  B  and  C  ;  and,  if  she  married  without  consent,  devise  to 
D.     A  married  without  consent.    The  master  of  the  rolls  held  the  con- 


fr.  Roe  V  Galliers,  2  T.  R.  133.  See  But- 
tertield  v.  Baker,  5  Pick.  522 ;  Doe  v.  Carew. 

2  Ad.  &  El.  N.  S.  317  ; v.  Rees,  6  Scottj 

161. 

(2)  Jackson  v.  Brownell,  1  Jolin.  267. 


(3)  Jack.son  v.  Agan,  1  John.  273. 

(4)  Per  L'l.  Man.slield,  Long  v.  Dennis,  4 
Burr.-  2056.  See  Craig  v.  Watt,  8  Watts, 
498;    Hoopesu.  Dundas,  10  Barr,  75. 


(a)  Tills  rule,  however,  seems  applicable  only  to  a  general  restraint  of  marriage ;  not  to 
such  conditions  as  merely  prescrilio  provident  regulations  and  sanctions ;  as,  for  instance, 
in  regard  to  time,  place,  age,  or  person,  the  consent  of  other  parties,  due  ceremonies,  &c. — 
unless  they  are  used  evasively  for  tlio  purpose  of  general  restraint.  It  lias  been  held  that  a 
dcvise  over  is  not  essential,  to  render  a  condition  annexed  to  laud,  and  in  restraint  of  marriage, 
void.     McCuliough'a  Appeal,  2  Jones,  197. 


374  ESTATE  ON  CONDITION,  ETC.  [CHAP.  XXVII. 

dition  as  "m  terrorem^\a)  and  void;  but  the  decree  was  reversed  on 
appeal.(l) 

45.  Devise  to  trustees  and  their  heirs,  in  trust  for  A  for  life,  if,  within 
three  years  from  the  testator's  death,  she  should  marry  B  ;  if  not,  de- 
vise to  0.  Upon  tlie  death  of  the  testator,  the  friends  of  A  made  pro- 
posals for  her  to  B,  which  he  declined,  and  A  then  married  D.  Held, 
in  the  Court  of  Chancery,  that  this  was  a  good  condition  precedent, 
without  performance  of  which  A  could  gain  no  title  ;  and  one  which, 
in  its  nature,  admitted  of  no  pecuniary  compensation.  (But  this  decree 
was  reversed  in  the  House  of  Lords.)(2) 

45  a.  A  testator  devised  the  whole  of  his  real  estate  to  A  and  B, 
"during  their  natural  lives,  that  is,  if  they  remain  single  ;  but  if  either 
of  them  shall  marry,  then  his  claim  and  benefit  of  the  aforesaid  land  to 
be  void  ;  or  if  they  both  shall  marry,  then  the  land  to  be  sold  as  here- 
inafter described."  Held,  that  on  the  death  of  A,  unmarried,  B  took 
the  whole  of  the  land,  to  hold  so  long  as  she  continued  unmarried. (8) 

46.  Such  a  condition  has  also  been  held  valid,  when  annexed  to  a 
devise  of  money,  charged  upon  and  to  be  raised  from  land  ;  and  in  the 
case  of  a  trust  term,  created  for  the  purpose  of  raising  portions  for 
daughters,  which  arise  out  of  land,  are  not  subject  to  the  ecclesiastical 
jurisdiction,  but  are  governed  wholly  by  the  common  law. (4) 

47.  A  settled  his  estate  to  the  use  of  himself  for  lile,  remainder  to 
trustees  for  a  term  of  years,  upon  trust,  to  raise  £2,000  for  each  of  his 
daughters,  if  they  married  with  their  mother's  consent ;  and  if  either 
of  them  died  before  marrying  with  consent,  her  portion  to  cease,  and 
the  premises  to  be  discharged  ;  or  if  raised,  to  be  paid  to  the  owner  of 
the  premises.  A  gave  to  his  daughters,  by  will,  an  additional  £2,000 
each,  on  the  same  condition.  Having  married  without  the  consent  of 
their  mother,  but  both  they  and  their  husbands  knowing  of  the  condi- 
tion, the  daughters  filed  a  bill  in  equity  against  the  trustees  and  exe- 
cutors, to  have  their  portions  raised.  Sir  Joseph  Jekyll  decreed,  that 
the  conditions  were  void.  Upon  appeal,  Lord  Hardwicke,  aided  by 
Lord  Chief  Justices  Willes  and  Lee,  and  Lord  Baron  Corny  ns,  reversed 
the  former  judgment.  The  chief  grounds  of  decision  were,  that  the 
restraint  was  a  condition  precedent,  till  the  performance  of  which  no 
estate  could  vest ;  or  else  a  limitation  of  the  time  of  payment,  which,  in 
this  case,  never  arrived  ;  that  the  condition  was  neither  repugnant,  im- 
possible, nor  malum  in  se,  the  only  conditions  to  be  rejected  ;  that  al- 
though, where  a  compensation  was  possible,  there  was  no  material  dis- 
tinction between  conditions  precedent  and  subsequent,  yet  in  this  case, 
which  did  not  allow  compensation,  a  much  clearer  intent,  expressed  by 
a  devise  over,  would  be  required  to  divest  an  estate  once  created,  than 
to  prevent  the  vesting  of  the  estate  ;  and  that  the  direction  to  have  the 
estate  exonerated  was  .equivalent  to  a  devise  over.(5) 

48.  But,  where  lands  are  charged  only  as  auxiliary  to  personal  estate, 

(1)  Fry  V.  Porter,  1  Cha.  Ca.  138  ;  1  Mod. ,      (3)  Fawver  v.  Pawver,  6  Gratt.  236. 


300. 

(2)  Bartie  v.  Falkland,  3  Cha.  Ca.  129;  16 
Jour.  230-36-38-40-1. 


(4)  Reves  v.  Heme,  5  Vin.  Abr.  343. 

(5)  Harvey  v.  Aston,  1  Atk.  361  ;  Coai. 
R.  726;  Willes,  83. 


(a)  Lord  Mansfield  .'tbrewdlj'  remarked  upon  this  phrase,  that  a  clause  can  carry  very 
little  terror,  which  is  adjudged  to  be  of  no  effect.     4  Burr.  2055. 


CHAP.  XXVII.]  ESTATE  ON  CONDITION,  ETC.  375 

such  condition  is  iiivjilid.  ^IMius,  a  testatrix  u;avc  to  lior  (laughter  a  sum 
of  money,  provided  she  shoidtl  marry  with  the  written  c(Misent  of  trus- 
tees ^iven  before  marriage,  and  not  (jtherwise,  and  ehargcxl  all  her  real 
estate  with  debts  and  legacies.  The  dau'jliter  married  without  consent, 
but  this  was  obtained  alter  marriage.     IIcUl,  the  devise  took  eilV'el.(l) 

49.  A  condition,  restraining  a  female  from  marrying  a  Scjotchrnan, 
has  been  held  good. (2)  -- 

50.  Conditions  of  this  kititl,  however,  being  in  the  nature  of  pe/ja/^ie5 
or  for ft:iti( res,  arc  construed  strictly  in  favor  of  the  devi^Jee.  li  the  sub- 
stantial part  and  intent  be  performed,  equity  will  sn|)plv  small  defects 
and  cireumstances.  They  are  said  to  be  odious,  and  contrary  to  sound 
policy. (3) 

51.  Devise  to  trustees  in  trust  for  the  testator's  daughter,  A,  till  her 
marriage  or  death  ;  if  she  should  marry  with  their  consent,  then  to  her 
and  her  heirs;  if  without  their  consent,  to  the  sisters  of  A.  There 
were  also  other  devises  to  A  and  her  sisters.  A  married  dui-ing  her 
flither's  life,  with  his  consent  and  approval,  and  he  settled  up(jn  the 
marriage  a  part  of  the  property  devised  to  her.  Held,  such  marriage 
was  a  waiver  of  the  condition,  and  made  the  devise  absolute  ;  and  that 
to  treat  the  estate  as  forfeited  would  defeat  the  manifest  intention,  be- 
cause it  would  pass,  not  to  the  other  sisters,  but  to  the  heirs  at  !a\v.(4) 

52.  So,  where  the  condition  was  that  the  devisee  should  marry  the 
testator's  granddaughter;  held,  an  offer  of  marriage  and  a  refusal  on 
her  part  were  a  waiver  of  the  condition. (5) 

58.  Devise  to  trustees,  to  the  use  of  the  testator's  sdii,  A,  for  life,  re- 
mainder to  his  wife  for  life,  remainder  to  A's  first  and  other  sons  in  tail ; 
]>rovided,  if  A  should  marry  any  woman  not  having  a  competent  mar- 
riage portion,  or  without  the  trustees'  consent,  &e.,  in  writing,  under 
hand  and  seal,  the  trustees  should  hold,  after  A's  death,  to  the  use  of 
the  testator's  daughters.  The  testator  further  declared,  that  the  pro- 
viso was  not  meant  to  be  construed  in  terrorem,  but  a  condition,  for 
■want  of  performance  of  which,  in  every  resj)ect,  the  estate  should,  not 
vest  in  his  son's  wife,  or  the  heirs  of  that  marriage.  A  married  a  wo- 
man having  a  portion,  but  without  the  consent  of  the  trustees,  one  of 
whom  became  one  of  the  devisees  in  remainder.  Lord  Mansfield,  in 
rendering  judgment,  remarked  that  the  forfeiture  was  so  cruel  as  to 
begin  with  the  innocent  issue  of  the  offender,  who  was  to  have  the  es- 
tate for  his  own  life  at  all  events;  and  that  the  testator  considered 
money  as  the  only  qualification  of  a  wife,  but  still  meant  to  leave  it  to 
the  judgment  of  trustees,  whether  there  might  not  be  some  equivalent 
for  money.  It  was  accordingly  held,  that,  although  the  conditicMi  was 
undoubtedly  a  precedent  one,  yet  it  v/as  to  be  taken  in  tlie  alternative, 
thrre  being  a  nure  error  in  the  jienning;  or  was  tQ  be  construed  and; 
either  a  portion,  or  the  consent  of  the  trustees,  fulfilled  the  condition  ; 
and  such  consent  was  probably  withheld  by  one  of  them  from  self-in- 
terest.(6) 

54.  Devise,  on  condition  the  devisee  should  marrv  witli  the  consent 
of  trustees  ;  if  not,  devise  over.     The  trustees,  being  applied  to,  olYered 

(1)  Reynisli  v.  Martin,  3  Atk.  330.  i      (5)  Robinson  v.  Comyns,  For.  1G4;  Daley 

(2)  Pen-in  v.  Lyon,  9  E.  170.  v.  Desliouverie,  2  Atl<.  2G1. 

(3)  4  Burr.  2052.  i      (6)  Long  v.  Dennis,  4  Burr.  2052. 

(4)  Clark  V.  Lucy,  6  Via.  Aor.  87.  i 


376 


ESTATE  ON  CONDITION,  ETC. 


[CHAP.  XXVII. 


to  agree  if  n  proper  settlement  were  made.  The  devisee  married  with- 
out their  knowledge,  and  a  proper  settlement  was  afterwards  made. 
Held,  a  good  compliance  with  the  condition. (1) 

55.  Devise  to  A,  on  condition  she  married  with  the  consent  of  B,  in 
writing ;  if  not,  devise  over.  A  married  without  B's  knowledge,  but 
B  consented  as  soon  as  he  heard  of  it.     Held,  a  fulfilment.(2) 

56.  A  condition  restraining  a  widow  from  marrying  again  is  valid ; 
especially  if  there  is  a  devise  over.(3)(a) 

57.  A  testator  devised  his  real  and  personal  estate  to  his  wife,  pro- 
vided she  remained  his  widow  for  life ;  but,  in  case  she  married  again, 
she  was  to  leave  the  premises;  and,  if  she  remained  a  widow  for  life, 
the  testator  devised  all  his  property,  after  her  death,  to  his  father  and 
mother,  if  living,  if  not,  to  others.  The  land  was  sold  for  the  payment 
of  debts,  and  the  widow  married.  The  testator's  flither  died  before  the 
marriage  of  the  widow,  leaving  the  mother  surviving.  Held,  the  tes- 
tator's mother  was  entitled  to  the  surplus  proceeds  of  the  real  estate.(4) 

58.  Property  was  devised  to  a  wife,  during  life  or  widowhood, 
charged  with  the  maintenance  of  her  children,  and,  in  the  event  of  her 
marriage,  to  be  equally  divided  amongst  the  children,  except  that  one 
slave  was  given  absolutely  to  the  widow.  Held,  this  devise  was  not 
void,  as  in  restraint  of  marriage  ;  that  it  was  not  a  devise  for  life,  to  be 
void  on  condition  that  the  widow  married,  but  a  devise  during  widow- 
hood, charged  with  the  education  and  maintenance  of  the  children  ;  and 
that  it  was  valid.(5) 

59.  Devise  to  "  my  wife  of  one-third  of  the  profits  arising  off  of  my 
real  estate,  only  so  long  as  she  remains  my  widow ;"  followed  by  lega- 
cies to  her  and  children,  payable  from  the  land.  "  Each  of  the  fore- 
going legacies,  that  is  to  come  out  of  my  real  estate,  shall  be  liens  there- 
on, until  paid."  Held,  a  devise  of  one-third  of  the  land  ;  a  devise  upon 
condition  ;  that  no  entry  was  necessary  to  take  advantage  of  it ;  and 
that  equity  would  not  relieve.(6) 


(1)  Daley  V.  Desbouverie,  2  Atk.  261. 

(2)  Bolton  V.  Humphries,  2  Cruise,  24. 

(3)  Fitcbet  V.  Adams,  2  Sira.  1128. 


(4)  Commonwealtli   v.   Stauffer,    10    Barr, 
350. 

(5)  Hawkins  v  Skeg«:s,  10  Humph.  31. 
(6j  Bennett  v.  Robinson,  10  Watts,  348. 


(a)  It  is  held  in  Massachusetts,  that  a  devise  to  the  testator's  wife  of  an  annuity,  during 
her  life  and  widowhood,  is  a  devise  on  condition  subsequent,  subject  by  its  terms  to  be  de- 
feated by  the  second  marriage  of  the  wife;  but  tiiat  the  condition  is  void  as  being  merely 
in  tcrrorem,  tiiere  being  no  devise  over  except  to  the  residuary  legatee,  who  was  the  heir  at 
law.  Parsons  v.  Winslow,  6  Mass.  169.  In  a  late  case  in  England,  it  is  held,  that  a  gen- 
eral condition  in  restraint  of  marriage  is  good,  with  respect  to  the  testator's  widow,  but  not 
any  other  woman.  Lloyd  v.  Lloyd,  10  Eng.  L.  &  Eq.  139.  The  same  general  doctrine  has 
been  adopted  in  Missouri. 

Devise  to  a  son  and  daughter  of  the  testator,  with  a  provi-sion  that  if  his  said  daughter 
should  marry  or  die,  the  laud  sliould  belong  exclusively  to  the  son.  Held,  the  condition 
was  void,  being  in  restraint  of  marriage.     Williams  v.  Cowden,  13  Mis.  211. 


CHAP.  XXVIII. 


ESTATES  ON  CONDITION,  ETC. 


377 


CHAP  T  E  II    X  X  \'  I  If . 

ESTATES  ON  CONDITIOX— rERFORMANCK,    BREACH,    IHSC1IAR(JE,    ETC.,  OP 

CONDITIONS. 


1.  Porfurniancc— conditions  precedent  and        23. 

subsfquciit. 

2.  Pert'oniiiuico  as  far  as  possible.  28. 

3.  Copiilalivo  condition.  3G. 
6.  Who  may  perlorm.  42. 
9.  WiitMi  porlbrmed.  49. 

13.  Pliico.  51. 

14.  Who  bound  by.  53. 

15.  Impossible  conditions.  54. 
20.  Rt'lusal  to  accept  performance,  &c.  55. 


Breacli  and  forfeiture  at  law  ;  condition 

and  covtmait,  &c. 
Reliefin  equity. 

Breacli,  how  taken  advantapo  of 
Breach,  wi)o  may  take  advantage  of 
Etfect  of  entry. 
Waiver  of  condition. 
Release  of  condition. 
Accord  and  satisfaction. 
Condition  and  Limitation — distinction. 


1.  With  regard  to  //?ejD6r/br?«a??ce  of  conditions,  a  distinction  i.s  made 
between  conditions  precedent  and  subsequent;  the  former,  which  create 
an  estate,  are  construed  liberally,  according  to  the  intent;  the  latter, 
which  destroy  an  estate,  are  construed  strictly.  Thus,  where  a  forfeit- 
ure of  land  is  claimed  by  the  grantor  for  breach  of  a  condition  subse- 
quent, in  the  performance  of  which  he  has  no  interest,  having  parted 
with  the  estate  for  the  accommodation  of  which  it  was  created  ;  the 
terms  of  the  condition  are  to  be  construed  with  great  strictness.(l) 

2.  But  where  literal  performance  of  a  condition  subsequent  becomes 
impo.ssible,  it  should  be  performed  as  nearly  accor^iing  to  the  limitation 
as  practicable.  Thu.s,  if  A  convey  to  B,  on  condition  that  B  re-convey 
to  A  and  his  wife  in  tail,  remainder  to  A*s  heirs,  and  before  such  re- 
couveyance  A  die  ;  B  shall  convey  to  the  wifefor  life  without  impeach- 
ment of  wiiste,  remainder  to  A's  heirs  on  her  begotten,  remainder  to 
A's  right  heirs.(-2) 

3.  When  a  condition  copulative,  consisting  of  several  branches,  is 
made  precedent  to  an  estate,  the  entire  condition  must  be  performed, 
else  the  estate  can  never  arise  or  take  place.(3)(a) 

4.  Thus,  where  a  settlement  provided,  that  trustees  should  be  seized  of 
land  to  the  use  of  A  and  his  issue,  if  he  should  be  married  to  B  after 
the  age  of  sixteen  and  they  should  have  issue  ;  and  they  were  married 
before  she  was  sixteen,  and  she  lived  to  that  age,  but  died  without 
issue ;  it  having  been  decided  that  A  took  the  estate,  this  decree  was 
reversi'd  in  the  House  of  Lord.s,  a  part  of  the  condition  not  being  ful- 
lilled.(-l) 


(1)  Co.  Lit.  219  b;  Ilopeboom  v.  TTall,  24 
Wend.  146 ;  Merrifield  v.  Cobleigh,  4  Cush. 
178. 

(2)  Lit.  352.     Se9ch.  27,  sec.  18. 

(3)  Ilarvy  t'.    Dame,    Ic,    Com.    R.   732 ; 


Van  Home  v.  Dorrance,  2  Dall.  317  ;  Clark 
V.  Trinity.  &c.,  5  Watts  &,  S.  26G. 

(4)  Wood  V.  Southampton,  2  Freem.  186; 
Show.  Pari.  Ca.  83. 


(a)  A  similar  principle  has  been  applied  to  a  condition  subscqtient.  Under  the  New  York 
statute,  (1  Rev  Sts.  34G,)  providing  that  a  diversion  of  salt  works  to  other  purposes  than  the 
manufacture  of  salt  shall  work  a  forfeiture  of  the  leasehold  estate,  the  partial  diveision  of  a 
lot,  as  for  the  erection  of  a  dwellitig-house,  Ac,  will  not  work  a  forfeiture,  but  only  a  diver- 
sion of  the  whole.     Hasbrook  v.  Paddock,  1  Barb.  635. 


378 


ESTATES  ON  CONDITION,  ETC. 


[CHAP.  XXVIII. 


5.  The  general  rule  is,  that  any  person  interested  in  the  condition  or 
the  estate  may  perform  the  former.  Thus,  if  a  conveyance  is  made  on 
condition  the  grantee  shall  pay  a  certain  sum  at  a  certain  time;  a 
grantee  of  such  grantee  may  perform  it.(l) 

6.  So,  also,  the  heirs  of  a  grantee  may  perform  the  condition,  though 
not  named,  if  a  time  is  fixed  for  the  performance.  The  possibility  of 
performing  the  condition  is  an  interest,  right,  or  scintilla  juris,  which 
descends  to  the  heir.     (See  ch.  27,  s.  15.) 

7.  Devise  to  A  for  life,  remainder  to  B  in  fee;  provided,  that  if 
within  three  months  from  A's  death,  0  should  pay  B,  his  executors, 
administrators,  &c.,  a  certain  sum,  the  land  should  go  to  C  and  his  heirs. 
C  died  during  the  life  of  A.  Held,  after  A's  death,  the  heir  of  C  might 
perform  the  condition.(2) 

8.  But  if  no  time  is  appointed  for  performance  of  the  condition,  the 
performance  of  it  is  a  right  personal  to  the  party  himself.  Thus,  it  is 
said,  in  case  of  a  feoffment  from  A  to  B,  upon  condition  that  if  A  pay 
B  a  certain  sum,  A  and  his  heirs  may  enter;  the  heir  cannot  perform 
the  condition.  This  principle,  however,  seems  inconsistent  with  the 
modern  law  of  mortgages,  as  will  be  seen  hereafter.(3) 

9.  Where  no  time  is  fixed  for  performance,  a  condition  shall  be  per- 
formed either  during  the  life  of  the  party  who  is  to  fulfil  it,  or  in  rea- 
sonable time,  according  to  the  circumstances  of  the  case.  Thus,  where 
the  condition  is  that  the  grantee  shall  pay  a  certain  sum,  he  is  bound 
to  pay  it  in  reasonable  time,  because  he  has  the  use  of  the  land.  But 
if  the  grantor  is  to  regain  the  estate  on  payment  of  a  certain  sum,  he 
has  during  his  life  to  pay  it ;  because  until  payment  he  cannot  take 
possession. (4)  So,  if  one  devise  land  to  A,  "on  condition  he  shall 
marry  B,"  the  devise  takes  effect  immediately,  and  the  devisee  has  his 
lifetime  to  perform  the  condition. (5) 

10.  The  former  of  these  rules  is  applicable,  where  an  immediate  per- 
formance b}^  the  grantee  is  necessary,  to  effect  the  evident  purpose  of 
the  grantor  in  making  the  conveyanee,(t3) 

11.  Devise  of  lands  to  a  town  for  a  school-house,  "provided  it  be 
built  within  one  hundred  rods  of  the  place  where  the  meeting-house 
stands."  Held,  this  was  a  valid  condition  subsequent,  and  the  vested 
estate  was  forfeited,  and  passed  to  the  residuary  devisee  as  a  contin- 
gent interest,  upon  non-compliance  with  the  condition  in  reasonable 
time.(7)(a) 

12.  The  time  of  performing  a  condition  precedent  in  a  deed  cannot 
be  enlarged  by  parol,  so  that  an  action  will  lie  upon  the  deed. (8) 

18.  Where  a  certain  place  is  appointed  for  performance  of  a  condi- 
tion, the  party  who  is  to  perform  must  be  at  the  place  at  the  time  ap- 


(1)  Co.  Lit.  207  b ;  Simonds  v.  Simonds,  3 
Met    558. 

(2)  Marks  v.  Marks,  1  Ab.  Eq.  106. 

(3)  Lit.  337. 

(4)  Crumtnel  v.   Andros,    2    And.   73;    14 
Mass.  428. 


(5)  Fiulay  v.  Kinor,  3  Pet.  376. 

(6)  Hamilton  v  Klliott,  5  Ser  &  R.  375. 

(7)  Hayden  v.  Stoughton,  5  Pick.  528.    See 
3ri.>rliam  v.  Shattuck,  10  Pick.  309. 

(8)  Porter  v.  Stuart,  2  Aik.  417. 


(a)  Conveyance,  on  condition  the  grantee  shall  discharge  a  mortgage  on  the  land,  made 
by  the  grantor,  but  not  fi.xing  any  time  for  such  discharge.  Held,  it  must  be  done  in  rea- 
sonable time.  Rosa  v.  Tremain,  2  Met.  495.  See  Austin  v.  Cambridgeport,  &c.,  21  Pick. 
215. 


CHAP.  XXVIII.] 


ESTATES  ON  CONDITION,  ETC. 


m 


pointed,  and  the  other  party  is  not  bound  to  accept  performance  else- 
where. But,  il'  lie  does  accept,  the  perlornuince  will  be  good.  Where 
no  phice  is  apjH)inted  for  perlornianee,  a  grantee,  who  is  to  perform  the 
condition,  by  payment  of  money,  must  seek  for  the  other  party,  if  he 
is  in  the  realm,  (country,)  but  not  if  he  is  abroad.  If  the  condition  is 
to  deliver  specific  and  cumbrous  articles,  such  as  wheat  or  tiijiber,  the 
grantee  is  not  bound  to  seek  the  grantor,  but  the  latter  nrnst  go  to  the 
former  and  appoint  a  place  of  delivery. (1) 

li.  One  who  accepts  an  estate  upon  condition  is  absolutely  bound 
to  perl'orm  it,  even  though  the  perlormance  be  attended  with  a  los.s, 
and  though  the  party  be  incapable  of  incurring  a  mere  personal  obli- 
gation. Thus,  it  seems,  the  acceptance  of  an  estate  charged  with  a 
charitv  binds  the  party  receiving  it  to  fulfil  the  charity,  though  the 
rents  prove  insufificient.(2)  So  an  infant  heir  or  married  woman  is 
bound  to  perform  a  condition  ;  which  charges  not  the  person,  but  the 
land.  So,  an  infant  mortgagee  is  bound  by  the  condition.  "  The  deed 
must  be  good  in  the  whole,  or  void  in  the  whole."(8)  So,  where  an 
in  (ant  agreed  that  a  judgment  with  condition  should  be  rendered  in 
Lis  favor ;  held,  after  coming  of  age,  he  could  not  avail  himself  of  the 
Ibrmer,  without  the  latter.  Upon  the  same  principle,  a  condition  binds 
the  estate  to  which  it  is  annexed,  into  whose  hands  soever  it  may 
corae.('i)(a) 


(1)  Lit.  340:  Co.  Lit.  210  b;  3Leon.2G0;  1 
Rolle'3  Abr.  44-1. 

(2)  Att'j'.  Gen.  v.  Christ's  IIos.,  3  Bro.  Cba. 
165. 

(3)  Parker  v.  Lincoln,  12  Mass.  18;  Badger 


V.  Pliinney,  15,  359.  See  Robertson  v.  Ste- 
vens. 1  Ired,  Equ.  247  ;  Garrett  v.  Scouten,  3 
Dcnio,  334;   Cross  v.  Carson,  8  Blackf.  138. 

(4)  Lowry  «.  Drake,  1  Dana,  47  ;  Ilogeboom 
I'.  Hall,  24  Wend.  146. 


(a)  The  following  recent  case  illustrates  this,  with  some  other  principles,  relating  to  con- 
ditions: 

A  provision  in  a  will.  "  that  if  either  of  my  said  daughlets  shall  be  distressed,  and  come 
to  want,  and  be  nnable  to  support  themselves,  then  my  will  is,  that  she  or  they  be  main- 
tained, iu  a  decent  and  comfortable  manner,  out  of  the  income  and  profits  of  tiie  whole  of 
my  real  estate,"  constitutes  a  legacy  or  bequest,  charged  upon  the  income  of  the  real  estate, 
and  through  that  upon  the  whole  of  tiie  land  itself ;  and,  on  the  happening  of  the  contin- 
gc'ncy,  the  maintenance  is  chargeable  upon  such  income,  in  the  hands  of  any  one  to  whom 
the  land  may  come.     Pickering  v.  Pickerinsr,  15  N.  11.  281. 

The  land  being  devised  to  several  persons  jointly,  an  implied  promise  arises  on  the  part  of 
the  devisees,  accepting  the  devise,  to  appropriate  the  income  to  the  support  of  the  daugh- 
ters, or  any  of  them,  on  the  happening  of  the  contingency,  while  the  devisees  hold  the 
land.     lb. 

Should  the  income  not  be  suEBcient  for  the  support  of  all  the  daughters  who  may  need,  it 
must  be  apportioned.     lb. 

Tiie  devisees  taking  jointly,  the  implied  promise  is  joint.     lb. 

Where  there  ia  an  implied  promise  by  a  devisee,  to  pny  a  legacy  charged  upon  tlie  land, 
an  action  will  lie  against  his  executor  or  administrator,  for  any  breach  in  the  time  of  the  de- 
visee, and  perhaps  for  a  subsequent  breach,  if  the  legacy  is  given  in  such  a  manner  that  it 
constitutes  dehitum  in  presenti.     lb. 

If  the  ciiarge  upon  tiie  land  be  of  a  gross  sum,  payable  presently,  or  at  a  future  day,  a 
conveyance  of  the  land,  would  neither  discharge  the  land,  nor  the  devisee  from  his  implied 
promi.se  to  pay  the  debt.  No  personal  promise  of  the  grantee  would  be  implied,  but  be  would 
take  the  land  charged  with  tiio  duty.     lb. 

Where  the  charge  depends  upon  a  contingency,  as,  for  instance,  where  the  legacy  is 
charged  upon  tiie  income  of  the  land,  in  case  the  legatee  shall  be  in  need,  the  implied 
promise  of  the  devisee,  on  the  acceptance  of  the  devise,  extends  only  to  an  apprcpriation 
of  the  income,  if  the  contingency  happens  while  he  holds  the  estate.  The  law  raises  no 
implication  of  a  promise,  beyond  the  time  that  ho  will  have  the  ability  to  perform  it ;  and 
the  estate  he  takes  is  assignable.     lb. 

It  seems  that  in  such  case,  upon  every  transfer  of  the  whole  estate,  the  grantee  who  takes 


530 


ESTATES  ON  COXDITION,  ETC. 


[CHAP.  XXVIII. 


15.  Where  performance  of  a  condition  becomes  impossible^  by  act  of 
God  ;  if  precedent;  no  estate  vests ;  if  subsequent,  the  estate  becomes 
absolute. 

16.  Devise  to  A,  on  condition  of  her  marrying  B  when,  or  before  A 
should  be  21.  B  died,  before  A  refused  or  was  requested  to  marry  him. 
Held,  the  condition  was  excused.(l) 

17.  Devise  of  land  to  A,  "on  condition  of  his  marrying  a  daughter 
of  B  and  C."  B  dies,  without  having  had  a  daughter.  The  condition 
heiug  suhsequent^  and  having  become  impossible,  A's  estate  is  absolute. (2) 

18.  Where  performance  of  a  condition  becomes  impossible  by  the 
act  of  the  party  who  imposes  it,  the  estate  is  rendered  absolute.  Thus, 
a  testator  devised  to  A  for  life  his  estate  at  B,  and  also  the  income  of 
certain  other  property,  while  A  shovdd  live  and  reside  at  B.  He  after- 
wards revoked  the  former  devise.  Held,  A  should  hold  the  latter  de- 
vise absolutely.(3) 

19.  Where  a  condition  is  double,  and  one  part  of  it  is  possible  at  the 
time,  and  the  other  not,  performance  of  the  former  is  sufficient.  And, 
if  the  condition  is  disjunctive,  giving  an  election  to  the  party,  and  one 
part  becomes  impossible  by  act  of  God,  the  whole  is  excused.  It 
seems,  however,  that  this  rule  is  subject  to  exceptions.(4) 

20.  Where  the  party,  who  is  to  have  the  benefit  of  a  condition,  pre- 
vents or  refuses  to  accept  performance;  or  absents  himself  when  he 
ought  to  be  present;  or  neglects  or  disables  himself  to  do  the  first 
act  on  his  own  part,  as  he  was  bound  to  do  ;  the  condition  is  dis- 
charged.(5) 

21.  Thus,  tender  and  refusal  of  a  mortgage  debt(a)  discharges  the 
land,  though  the  debt  remain.  So,  where  the  agency  of  a  landlord  is  in 
any  way  involved  in  the  act,  v/hich  is  to  work  or  prevent  a  forfeiture 


(1)  Co  Lit.  206  a.  218  a;  Thomas  v.  How- 
ell, 1  Sulk.  170;  Merrill  v.  Emery,  10  Pick. 
507;  Van  Home  v.  Dorrauce.  2  Dall.  317. 
See  19  John.  69:  Taylor  v.  BuUen,  6  Cow. 
627  ;   M'Lacklan  v.  M'Lacklan,  9   Paii^e,  534. 

(2)  Finlay  v.  King,  3  Pet.  374. 

(3)  Darley  v.  Langworthy,  3  Bro.  Pari.  Cas. 
359. 


(4)  Wigley  V.  Blackwal,  Cro.  Eliz.  780; 
Laughter's  case,  5  Rep.  21 ;  Studholrae  v. 
Maiidell,  1  Lord  Ray.  279  ;  Da  Costa  v.  Davis, 
1  B.  &  P.  242. 

(5)  2  Cruise,  33.  See  Camp  v.  Barker,  21 
Verm.  469. 


the  estate,  charged  with  a  duty  which  is  to  be  performed  upon  a  contingency,  or  a  continu- 
ing duty  which  does  not  constitute  a  debt,  or  a  duty  which  occurs  from  time  to  time,  might 
be  held,  by  implication,  to  promise  performance  of  the  duty,  or  payment  of  the  charge 
which  accrues  in  his  time,  and  that  his  personal  representatives  might  be  chargeable  for  his 
default.     lb. 

But,  where  the  devisee  or  devisees  .sell  the  estate  in  parcels  at  different  times,  (although 
any  one  of  the  grantees  might  perform  the  duty,  or  make  the  payment,  and  have  his  remedy 
for  contribution,)  upon  ordinary  principles  of  law,  neither  could  exonerate  his  land  by  per- 
forming or  paying  a  pt'o  rata  proportion,  nor  could  a  several  promise  of  performance  of  the 
whole  duty  be  implied.     lb. 

If  a  joint  promise,  upon  which  an  action  atiaw  may  be  sustained,  can  be  implied,  it  must 
be  of  such  a  shifiing  character,  upon  the  happening  of  subsequent  sales,  as  to  show  that  it 
can  only  be  raised  from  the  necessity  of  the  case,  for  the  salve  of  a  remedy.  No  such  im- 
plication can  be  raised,  if  the  legatee  can  have  any  other  relief;  and  the  appropriate  remedy 
is  in  equity,  where  equitable  jurisdiction  over  the  subject  matter  exists.     lb. 

The  duty  devolving  upon  the  holders  of  the  land,  in  this  case,  would  be  performed  by  an 
appropriation  of  the  income,  or  so  much  of  it  as  is  necessary,  at  a  reasonable  place,  by 
either  of  them.  But  an  offer  of  support  by  a  devisee  who  had  parted  with  bis  title,  and 
was  not  liable,  would  not  bar  the  remedy.     lb. 

(a)  In  New  York,  even  alter  condition  broken.     Farmers,  &c.  v,  Edwards,  26  Wend.  541 


CHAP.  XXVIIL]  ESTATES  ON  CONDITION,  ETC.  381 

of  a  lease,  he  ought  so  to  act,  as  to  make  it  ajipear  that  he  nicaiis  to 
insist  on  the  forrcilure.(l) 

22.  A  and  B  mutually  agreed,  that  B  would  jnirchase  a  farm  of  A, 
and,  as  a  ]»art  of  the  consideration,  convey  to  A  another  farm  cjf  less 
value;  and  that  all  timber,  trees,  &c.,  upon  each  estate,  should  be 
valued  and  paid  for  by  them  respectively;  and,  unless  A  should  be 
able  to  make  a  good  title  before  a  certain  day,  the  agrccrntnt  to  be 
void.  A  cut  down  divers  trees.  In  a  suit  for  the  penalty  annexed  to 
the  agreement,  held,  A  had  disabled  himself  to  perform  his  part  of  the 
agreement  by  this  act;  that  such  performance  was  a  condition  prece- 
dent, and  therefore  A  could  not  maintain  the  present  action. (2) 

23.  A  court  of  law  cannot  relieve  against  a  breach  of  eondili-in,  or 
restore  the  consideration  paid  by  the  party,  upon  whom  such  breach 
operates  as  a  forfeiture. 

2-i.  Thu.^j,  Avhere  one  conveys  land'  upon  condition  subsequent, 
whieji  the  grantee  fails  to  perform,  and  the  grantor  enters  fur  the 
breach  ;  the  grantee  cannot  recover  back  money  paid  by  hint  as  part 
of  the  consideration. (8) 

25.  But,  on  the  other  hand,  after  such  entry,  the  grantor  cannot 
recover  the  balance  of  the  price.(-i) 

25  a,  A  condition,  in  a  deed  of  land  subject  to  mortgage,  that  the 
grantee  shall  indemnify  the  grantor  from  the  principal  and  interest 
secured  by  the  mortgage,  is  broken  by  a  failure  to  pa}'  interest  when 
due  ;  and  the  grantor,  on  paying  the  interest,  may  immediately,  with- 
out a  demand  on  the  grantee  for  reimbursement,  enter  on  the  land  for 
"breach  of  condition  ;  and  a  subsequent  tender  of  the  principal  and  in- 
terest, accompanied  by  an  offer  to  indemnify  the  grantor  for  any 
trouble  and  expense  to  which  he  has  been  subjected,  is  no  bar  to  a 
suit  to  enforce  the  forfeiture.(5) 

25  b.  But  the  court  will  order  a  stay  of  proceedings,  on  payment  of 
the  mortgage  debt,  interest  and  costs,  provided  the  default  was  not 
wilful. (6) 

25  c.  Conveyance  in  fee,  upon  condition  that  the  deed  sliould  be 
void,  if  the  grantor  and  others  paid  certain  notes  at  the  times  specified, 
(the  sum  of  said  notes  being  the  whole  purchase-money,  and  the  con- 
sideration of  the  deed.)  The  grantee  entered,  and  held  without 
liindrance,  but  the  grantor  did  not  pay  the  notes  at  the  times  specified. 
Held,  by  non-perfbrmance  of  the  condition,  a  forfeiture  was  saved,  and 
the  subsequent  payment  of  the  notes  could  not  destroy  the  convey- 
ance. (7) 

26.  A  court  of  law,  however,  will  sometimes  construe  that  which  is 
in  form  a  condition^  a  breach  of  which  forfeits  the  whole  estate,  into  a 
covenant,  on  which  only  the  actual  damage  sustained  can  be  recovered. 
Conditions  and  limitations  are  not  readily  to  be  raised  by  mere  infer- 
ence and  argument.  The  words  usually  employed  to  create  a  condi- 
tion, are  o?i  co)idilion.  But  the  phrases  so  that,  inoinded,  if  it  shall 
happen,  are  of  the  same  import.  Provided  always  may  constitute  a 
condition,    limitation   or   covenant,   according   to   the   circumstances. 


(1)  Jackson  v.  Crafts,  18  Joliii.  110;  Mer- 
ritt  V.  Lambert,  7  Paige,  344 ;  Tate  v.  Crow- 
son,  6  Ired.  G5. 

(2)  St.  Alljiins  V.  Shore,  1  U.  Bl.  270; 
Hard  v.  Wadliam,  1  E.  619. 


(3)  Frost  V  Frost,  2  Fairf.  235. 

(4)  Ibid. 

(5)  Saiibora  v.  "Woodman,  5  Cusb.  36. 
(G)  Ibid. 

(7;  Hodsdon  v.  Smith,  14  N.  H.  41. 


382 


ESTATES  ON  CONDITION,  ETC. 


[CHAP,  xxviir. 


And  if  words,  both  of  condition   and  covenant,  are   used,  both  may 
take  eflfect.(l) 

27.  But,  where  the  explicit  words  which  denote  a  condition  are 
used,  they  will  not  be  construed  into  a  covenant.  Thus,  where  one 
conveyed  a  h(;use,  "  on  condition  that  no  windows  should  be  placed 
in  the  north  wall  within  thirty  years,"  and  Avindows  were  made 
within  that  time;  held,  this  could  not  be  construed  as  a  covenant, 
and  the  estate  was  wholly  forfeited.  And  even  where,  for  breach  of 
covenant,  a  forfeiture  is  incurred,  a  court  of  law  has  no  power  to  stay 
proceedings. (2) 

28.  Where  a  forfeiture  has  been  incurred  at  law  by  breach  of  con- 
dition, a  court  of  Chancery  will  sometimes  afford  relief.  It  was  for- 
merly held,  that  this  could  be  done  only  where  the  condition  is  a  sub- 
sequent one  ;  but  it  seems  to  be  now  settled,  that  in  all  cases  a  for- 
feiture shall  not  bind,  where  the  thing  may  be  done  after  the  time, 
or  a  compensation  made  for  it,  and  where  the  breach  resulted  from  in- 
evitable ^accident.  And  Chancery  will  relieve,  even  in  favor  of  the 
heir  of  the  party  who  was  to  have  performed  the  condition,  and  after 
a  recovery  of  the  land,  at  law,  by  the  heir  from  whom  it  was  devised 
away,  on  condition. (8)(a) 

29.  A  married  woman,  having  a  power  to  dispose  of  lands,  devised 
them  to  her  executors  to  pay  £5<J0  out  of  them  to  her  son  ;  provided, 
that  if  the  father  did  not  release  certain  goods  to  the  executors,  the 
devise  of  the  money  should  be  void,  and  it  should  go  to  the  executors. 
After  the  death  of  the  testatrix,  a  release  was  tendered  to  the  father, 
which  he  refused  to  sign.  The  son  brings  a  bill  in  equity  against  the  ' 
executors  and  the  father,  and  the  father  answered  that  he  was  then 
ready  to  release.     It  was  decreed  that  the  £500  should  be  paid. (4) 

30.  So,  where  one  devises  lands  on  condition  to  pay  certain  sums 
at  specified  times  to  his  heir,  and  for  non-payment  of  one  of  them 
the  heir  enters.  Chancery  will  restore  the  land,  on  payment  of  the 
sum  with  interest.(5) 

31.  Even  where  land  is  devised  on  condition  of  paying  a  sum  of 
money  at  a  certain  time,  and  upon  non-payment  devised  over  on  the 
same  condition.  Chancery  will  relieve.(6) 

32.  Devise  to  the  two  sons  of  the  testator,  "they  jointly  and  sev- 
erally paying  to  my  two  daughters  $800  each,  within  one  year  from 


(1)  4  Kent,  131-2  and  n. ;  Doe  v.  Phillips, 
9  Muore,  46;  Doe  v.  Watt,  8  Barn.  &  Cress. 
308. 

(2)  Gray  v.  Blanc-lianl,  8  Pick.  284 ;  Doe 
V.  Asby,  10  Ad.  &  El  71. 

(3)  4  Kent,  120.  125;  Popliam  v.  Bamp- 
field.  1  Vern.  S3 ;  Cage  v.  Kusael,  2  Verii. 
352;   Baniardistone  v.   Fane,   2   "Vern.    3G6 ; 


Wells  V.  Smith,  2  Edw.  75;  City,  &c.  v. 
Smith,  3  Gill  &  J.  265  :  Baxter  v.  Lansing,  7 
Paige,  350  ;  Bacon  v.  ^Iniitington,  14  Conn. 
92;  Luckctt  v.  WHiite,  10  Gill  &  J.  480; 
Washburn  v.  Washburn,  23  Verm.  576. 

(4)  Ibid. 

(5)  Griinston  v  Bruce,  1   Salk.  156. 
(G)   Woodman  v.  Blake',  2  Vern.  222. 


(a)  Chancery  relieves  in  case  of  failure  to  pay  rent,  though  the  lease  was  thereby  to  be- 
come vaid.  In  equity,  it  seems,  an  equitable  agreement,  thouu^h  in  form  of  a  charge,  does 
not  forfeit,  without  chaiifie  of  possession.  But  no  relief  is  aflbrded  to  a  lessee,  who  commits 
a  breacii  of  covenant.     Bowser  v.  Colby,  1  Ilnre,  109. 

It  IS  said,  UinK  fixed  for  pc.-rforrnance  of  a  condition  precedent  is  of  the  essence  of  the  con- 
tract, whether  it  be  an  hour  or  a  diy.     Shinn  v.  Roberts.  1  Spencer,  435. 

Whether  the  Supremo  Court  in  Maine  can  allbrd  equitable  relief  ibr  breach  of  condition; 
see  Ma V wick  v.  Andrews,  25  Maine,  525. 


CIIAr.  XXVIII.]  ESTATES  ON  CONDITION,  ETC.  383 

my  death."  Held,  this  wa.s  not  a  h(jacy,  but  a  condition — tlie  breach  of 
which  forfeited  the  estate  at  law  ;  but  also  that  Chancery  would 
relieve,  notwithstanding  the  effect  of  the  disposition  was  to  make  an 
unequal  distribution  of  the  cstate.(l)  Ilosmer,  J.,  seems  to  place  the 
decision  upon  the  ground  that  the  condition  was  a  suhseqnent  one.(2) 

83.  But  Chancery  will  not  relieve  against  a  breach  of  condition,  in 
those  cases  where  there  is  no  rule  for  the  measure  of  "dnmages,  and 
where  the  breach  consists  in  a.  positive  act  directly  in  the  face  of  the 
condition  ;  as,  for  instance,  where  a  lease  contains  a  condition  against 
assignment,  which  the  lessee  violates.  Nor  will  it  relieve  where,  by 
performing  a  condition  precedent,  the  party  would  have  the  right  to  sue 
at  law  ;  though  he  has  offered  so  to  perform. (3)  It  is  said,  equity  can- 
not control  the  lawful  contracts  of  .parties,  or  the  law  of  the  land. 
And,  in  one  ease.  Lord  Eldon  held,  that  relief  could  be  granted  only 
where  the  condition  was  to  pay  money. {■^){n) 

34,  So,  Ciiancery  will  not  relieve  against  forfeiture  of  an  estate,  de- 
clared at  law,  where  the  condition  consists  in  the  performance  of  ser- 
vices and  attentions,  for  the  personal  comfort  and  convenience  of  the 
party  claiming  the  forfeiture.  In  such  case,  the  time  for  the  perform- 
ance of  the  service  is  of  the  essence  of  the  contract ;  it  can  never  be 
performed  afterwards ;  and  it  is  impossible  to  put  the  party  in  the  pre- 
cise situation  in  which  he  would  have  been  if  the  condition  had  been 
perfbrmed.(5) 

3-i  a.  Ancl,  even  if  the  forfeiture  were  declared,  for  breach  of  a  con- 
dition admitting  of  compensation,  the  court  will  not  relieve,  when  the 
party  has  been  guilty  of  other  breaches,  for  which  a  forfeiture  might 
be  enforced  at  law,  and  when  the  court  cannot  feel  confident  tiiat  the 
party  would  thereafter  faithfully  perform  his  covenant.(6) 

34  h.  So,  the  insolvency  of  the  party  asking  the  relief  affords  a  strong 
reason  why  the  relief  should  not  be  granted,'  where  such  insolvency 
might,  and  probably  would,  prevent  the  due  i)erformance  of  the 
coveiKints.(7) 

34  0,  And,  when  the  covenants  arc  for  the  performance  of  personal 
services,  and  the  delivery,  from  time  to  time,  (jf  specific  articles  of  pro- 
duce and  provisions,  for  the  comfort  and  support  of  the  covenantees, 
and  a  forfeiture  has  been  declared  at  law  for  a  breach  of  conditions ; 
the  Court  of  Chancery  have  no  power,  upon  a  bill  brought  for  relief,  to 
change  the  contract  of  the  parties,  and  direct  a  certain  sum  to  be  paid 
periodically,  in  lieu  of  the  performance  of  the  covenants  stipulated. (8) 
34  d.  And,  where  the  forfeiture,  in  such  case,  was  taken  for  breach 
of  covenant  to  keep  a  suitable  horse  for  the  use  of  the  covenantees,  and 
there  had  been  no  subsequent  periormance,  or  acceptance  of  perform- 
ance;  held,  a  subsequent  acceptance,  by  the  covenantees,  of  the  per- 


(1)  Wheeler  v.  Walker,  2  Conn.  19G-209. 

(2)  Th.  301. 

(3)  Waier  v.  Mocato,  9  Mod.  112;  Rolfe  v. 
Harris,  2  Trice,  207  n. ;  Braeebrid^ce  v. 
Buckl  y.  II).  200  ;  City,  Ac.  v.  Smith,  3  Gil. 
&  J.  2G5 ;  Gouverueur  v.  Bibby,  3  Edw.  3i8. 


(4)  mil  V.  Barclay,  18  Yes.  63.     See  Blake 
V.  Slirieve,  5  Dana,  373. 

(5)  Duiikiee  V.  Aiianis,  20  Term.  415.     See 
Au.stin  V.  llayiiioud.  D  Venn.  -lliO. 

{(J)  lb, 
(1)  lb. 
(8)  lb. 


(a)  Where  an  order  was  pissed  upon  a  mortjrapor  to  pay  the  debt  between  the  hours  of 
11  and  12,  and  tiie  niortira^'ee  came  to  tlio  placn  at  20  iHiuutes  past  11  and  wailed  an  hour, 
the  njortgage  was  held  loreclosod.     1  ColL  Cha.  273. 


384 


ESTATES  ON  CONDITION,  ETC. 


[CHAP.  XXVIII. 


formance  of  other  covenants,  essential  to  their  sui)port,  would  not 
operate  as  a  waiver  of  the  forfeiture,  it  appearing  that  a  litigation  was 
pending  at  the  time  between  the  parties,  in  which  the  covenantees  were 
constantly  insisting  upon  the  forfeiture.(l) 

35.  A  covenanted,  in  1799,  to  convey  to  B  certain  land,  being  gov- 
ernment land,  "on  B  being  at  one-half  the  expense,  in  land  or  other- 
wise, for  procuring  a  title,"  &c.  This  condition  was  the  sole  considera- 
tion. A  incurred  the  expenses  in  180U,  and  gave  notice  to  B  in  1802, 
but  B  paid  no  regard  to  it  till  1806.  In  the  meantime,  the  value  of 
the  land  increased  tenfold.  B  brings  a  bill  in  equity  against  A  for 
specific  performance.  Held,  the  condition  was  a  condition  precedent, 
and,  upon  various  considerations,  equity  would  not  relieve.  1.  B  was 
not  bound  by  any  contract ;  and,  therefore,  if  A  had  performed  his  part 
of  the  agreement,  he  would  have  had  no  remedy  against  B.  2.  As  the 
title  to  the  land  was  in  the  government,  and  a  survey  necessary,  the 
expenses  must  necessarily  be  incurred ;  and  the}'  must  also  be  paid  in 
lyrocuring  the  title — merely  reimbursing  might  defeat  the  whole  object. 
3.  Hence  this  condition  was  not  intended  as  a  mere  security,  and  the 
breach  was  not  a  mere  default  in  time,  but  it  destroyed  the  substance  of 
the  contract  4.  The  act  provided  for  was  to  be  done  for  the  benefit  of 
a  third  part}',  the  owner  of  the  land,  and  therefore  the  damage  was  not 
susceptible  of  compensation.  5.  The  word  "  expenses"  included  time 
and  hhor^  which,  from  their  very  nature,  could  not  be  paid  at  any  sub- 
sequent period.(2) 

36.  Breach  of  a  condition,  annexed  to  a  freehold,  can  be  taken  ad- 
vantage of  by  the  grantor  or  his  heir,  only  by  means  ot  an  entry  upon 
the  land,  for  this  express  purpose,  or,  in  some  cases,  a  claim,  which  is 
equivalent  to  entry;  and  it  matters  not,  whether  there  is  any  express 
provision  for  re-entry  or  not.  In  case  of  incorporeal  or  reversionary 
rights,  a  claim  is  the  only  practicable  mode.  Where  there  is  a  forfeit- 
ure to  the  government,  an  office,  or  writ  of  scire  facias  or  quo  luarranto, 
is  equivalent  to  entry. (3)  But  the  bringing  of  an  action  of  disseizin 
has  no  effect  as  a  cl!iim.{4:){a)     In  some  instances  of  condition  subse- 


(1)  Dunkle  v.  Adams.  20  Verm.  415.  See 
Austin  V.  Raymond,  9  Verm.  420. 

(2)  Hiitiheson  v.  Heirs,  &e.,  Ohio  Cond.  R. 
10.     See  Longstreet  v.  Ketcliaiii,  Coxe   170. 

(3)  Co.  Lit.  218  a;  Fitoliet  v.  Adams,  2 
Stra.  1128 ;  Wig;^  v.  Wi.irg,  1  Atk.  383  ;  Gray 
V.  Blanchard,  8  Pick.  -IM;  Finch  v.  Riseley, 
Popn.  53;  Doe  v.  Watt,  1  Mana.  &  Ry.  694; 


(  Canal,  &c.  v.  Railroad,  &c.,  4  Gill  &  J.  121; 
Willard  v.  Henry,  2  N.  H.  120 ;  People  v. 
Brown,  1  Caines,  426;  Spear  v.  Fuller,  8  N. 
H.  174;  Thompson  v.  Bright.  1  Cush.  420; 
Cross  V.  Carson,  8  Blaekf.  138;  Bo  wen  v. 
Bowen,  18  Conn.  435. 

(4)  Clialker  v.    Chalker,  1  Conn.  79;  Lin- 
coln, &e.  V.  Drummond,  5  Mass.  321. 


'  (a)  II  liaa  been  seen,  that,  in  many  of  the  States,  the  bringing  of  a  suit  is  made  equivalent 
to  re-entry,  in  case  of  'non-pa ymtnt  of  rent.  In  Ohio,  the  same  provision  apphes  to  all 
breaches  of  condition.  (Walk.  Intro.  297  ;  Sperry  v.  Pond,  5  Ohio,  387.)  In  Massaciiusetts, 
(Rev.  St.  610,)  in  all  cases,  a  title  may  be  enlorced  by  action  alone,  without  entry.  In  Ver- 
mont, where  A  conveyed  to  B  for  the  life  of  B  and  his  wife,  reserving  to  himself  the  right  to 
possess  and  cultivate  tiie  premises,  for  tlie  purpose  of  enabling  him  to  perform  certain  cove- 
nants upon  his  part,  for  tiie  support  of  B  and  liis  wife;  and  B  subsequently  recovered  judg- 
ment in  ejectment  against  A,  for  Ijreach  of  tiiose  covenants,  upon  w'liich  no  writ  of  posses- 
sion was  taken  out;  held,  the  judgment  terminated  A's  right  to  possession,  and,  if  he  still 
undertook  to  manage  tlie  flirm,  directly  or  indirectly,  without  some  new  license,  he  did  so  as 
a  wrong-doer,  and  acquired  no  right  to  the  crops,  as  against  B,  or  the  holders  of  B's  title. 
Adams  v.  Dunklee,  19  Verm.  382.  "Where  a  riglit  of  re-entry  was  reserved  for  breach  of 
covenant,  upon  giving  notice  -of  avoiding  the  conveyance  ;  held,  a  notice  that  there  would 
be  a  re-entry,  unless  tlie  other  party  should  lio  certain  acts,  was  insufficient,  being  prospective 
and  conditional.     Muskett  v.  llill,  5  Bing.  N.  694. 


CHAP.  XXVIII]  ESTATES  ON  CONDITION,  ETC. 

qucnt,  Chancer}'  will  decree  a  reconveyance  of  the  land.  Thus,  where 
a  marriage  settlement  was  made,  on  condition  that  if  the  wife,  on 
coming  of  age,  should  not  charge  her  own  estate  with  a  certain  sum, 
the  settlement  should  be  void,  and  she  refused  so  to  do ;  a  reconvey- 
ance was  decreed,  with  an  account  ol  the  rents  and  profits  from  the 
time  of  refusal. (1) 

37.  Even  where  the  condition  provides  that  the  estate  .shall  be  void 
on  n()n-j)ei'lbrmance,  the  estate  is  not  defeated  without  some  act  or  de- 
claration of  the  grantor.(a)  (But  see  sec.  41.)  Thus,  A  granted  to  B  a 
license  to  enter  upon  his  lands,  and  search  for  and  dig  ores  for  twenty- 
one  years,  provided,  that  if  he  should  cease  to  work  the  mine  for  six 
months,  or  break  any  of  his  covenants,  the  said  indenture  and  the 
liberties,  powers,  &;c.,  thereby  granted,  should  cease,  determine  and  be 
utterly  void  and  of  no  effect.  Held,  the  word  vou/ should  be  construed 
to  mean  voidable;  that,  although  no  entry  was  necessary  to  avoid  the 
license,  because  it  did  not  pass  the  land,  yet,  by  analogy  to  the  rule  in 
case  of  a  freehold  lease,  the  grantor  should  give  notice  of  his  intention 
to  avoid  it;  and  that,  until  such  notice,  the  right  of  possession,  certainly 
as  against  any  one  not  claiming  under  the  grantor,  remained  in  the 
occupant.(2) 

38.  So  where  a  patent  is  granted,  with  the  provision  that  on  failure 
to  clear  or  pay  rent,  it  shall  ipso  f<ido  cease  ;  still  the  condition  is  sub- 
sequent, and  an  adverse  claimant  is  bound  to  prove  a  forfeiture.  And 
notwithstanding  this  form  of  expressing  a  condition,  to  save  a  forfeit- 
ure, it  will  be  Aiirly  and  liberally  construed;  and  a  distinction  made 
between  slight  or  accidental  breaches,  and  those  which  are  important 
and  wilful.(3)(/v) 

3y.  There  are  some  cases,  where  an  entry  for  breach  of  condition  is 
impracticable,  or  inconsistent  with  other  rights,  and  therefore  the  law 
does  not  require  it.  Thus,  where  A  grants  land  to  B,  with  livery  of 
seizin,  for  five  years,  on  condition  that,  if  he  pay  a  certain  sum  within 
two  years,  he  shall  have  the  fee,  and  B  fails  to  make  payment  at  the 
time  ;  inasmuch  as  A  has  no  right  of  entry  till  the  five  years  expire, 
the  fee  revests  in  him  without  entry  or  claim.  So,  where  one  grants 
a  rent-charge  from  his  own  land  on  condition,  the  rent  becomes  void 
upon  breach  of  condition,  without  entry  or  claim,  because  the  grantor 


(1)  Hunt  V.  Hunt,  Gilb.  Rep.  43  ;  Prec.  in 
Clia.  3S7. 

(2)  Riibertsu.  Davev.  4  Barn.  &  Ad.  664; 
Bowser  v.   Colby,    1   Hare,   109 ;  Phelps   v. 


Chesson,  12  Ired.  194;  Western,  Ac.  v.  Kyle, 
6  Gill,  343. 

(3)  Sueed  v.  Ward,  5  Dana,  187;  Cross  v. 
Coleman,  6,  44G. 


(a)  But  a  deed  of  land  upon  condition  that,  unless  the  grantee  should  make  certain  pay- 
ments, tliodee<i  should  be  "  void,  so  far  as  to  make  good  any  non-fullilmeut  of  said  condi- 
tions," will  entitle  the  grantor,  on  breach  of  condition,  to  recover  possession  of  tiie  land,  to 
holil  as  security  for  the  performance  of  liio  condilions.     Fisk  v.  Chandler,  30  Maine,  79. 

(b)  Coiu'eyance  by  father  to  son,  of  one-third  of  his  farm,  upon  which  both  resided,  con« 
ditioned  to  be  Toid,  if  the  grantee  should  refuse  to  pay  the  grantor  $30,  each  year,  if  the 
grantor  should  call  for  it.  Held,  the  annual  payments  could  not  be  consolidated  and  de- 
manded together,  after  several  years,  but  each  niust  be  demanded  separutely.  at  or  about 
the  close  of  each  year,  and,  if  not,  was  waived,  or  relinquished,  and  no  forfeiture  incurred 
by  non-payment.     Buckmaster  v.  Needhain,  22  Verm.  117. 

The  son,  having  been  in  possession  wilii  the  father  several  years,  removed,  and  left  the 
latter  in  sole  possession,  and  afti-rwards  mortgaged  one-third  of  the  farm.  Held,  tiio  father's 
possession  should  not  be  presumed  to  be  adverse,  even  though  so  intended,  as  against  the 
validity  of  the  mortgage,  unless  the  mortgagee  had  notice  of  the  adverse  poaaesaiou.     lb. 

Vol.  I.  25 


386 


ESTATES  ON  CONDITION,  ETC. 


[CHAP.  XXVIII. 


is  already  in  possession.  For  the  same  reason,  if  a  grantee  on  condition, 
before  a'breach,  lease  the  land  to  the  grantor,  no  entry  is  required  to 
revest  the  title  in  the  latter.  So  a  party,  for  whose  benefit  a  condition 
subsequent  is  attached  to  a  devise  of  real  estate,  being  in  possession  at 
the  time  of  the  breach,  is  presumed  to  hold  for  the  purpose  of  enfor- 
cing the  forfeiture.  Such  party  may  waive  the  forfeiture;  and  acts  in- 
consistent with  the  claim  of  forfeiture  are  sufficient  evidence  of  a  wai- 
ver.(l) 

40.  But  where  the  party  who  is  to  perform  a  condition,  and  the 
party  for  whom  it  is  to  be  performed,  are  jointly  in  possession,  it  is 
said  the  latter  must  make  claim  for  a  breach,  by  acts  and  words,  or 
either  of  them,  such  as  will  distinctly  admonish  the  grantee  that  pos- 
session will  be  retained  for  the  breach,  and  not  waived.  Complaints 
are  mere  statements  of  a  breach,  not  expressions  of  an  intent  to  claim  a 
forfeiture.(2)(a) 

41.  Where  the  estate  to  which  a  condition  is  annexed  is  for  years 
only,  and  is  to  cease  on  the  lessor's  doing  a  certain  act,  no  entry  is  re- 
quired to  determine  it.  Thus,  if  A  lease  to  B  for  years,  on  condition 
that  if  he  pay  B  £10  the  estate  shall  cease,  upon  such  payment  the 
term  ipso  facto,  comes  to  an  end.(3)(&) 

42.  As  the  benefit  of  a  condition  can  be  reserved  only  to  the  grantor 
or  lessor  and  his  heirs,  so  no  person  could  enter  for  breach  of  an  ex- 
press condition,  at  common  law,  except  parties  and  privies  in  right  and 
representation — that  is,  the  heirs,  executors,  &c.,  of  individuals,  or  the 
successors  of  corporations.  Neither  privies  nor  assignees  in  law,  as 
the  lord  by  escheat,  nor  privies  in  estate,  as  reversioners  and  remainder- 
men had  a  right  of  entry.(c)  This  rule,  however,  did  not  apply  to  im- 
plied conditions — as,  for  instance,  that  against  a  tenant's  attemptin^^  to 
convey  a  greater  interest  than  he  himself  had;  of  the  breach  of  which 
an  assignee  might  take  advantage.(4) 

4"2  n.  The  charter  of  Trinity  Church  was  confirmed  in  1704,  by  an 
act  which  limited  its  clear  income  from  lands  to  £500  a  year.  In  1705, 
a  tract  of  land  was  granted  to  it  by  the  queen,  which  was  leased  for 
£80  a  year,  for  five  years  from  that  time.  The  land  rapidly  increased 
in  value,  and  the  income  and  value  became  enormous.  Held,  on  a  bill 
in  which  the  church's  title  in  fee  was  denied,  that  sucli  an  increase  of 
the  income  of  the  land  would  not  divest  the  church  of  its  title  under 
the  grant,  and,  if  it  did,  it  could  only  be  taken  advantage  of  by  the 


(1)  Lit.  350;  Co.  Lit.  218  a;  Lincoln,  &c. 
V.  Drummoiid,  5  Mass.  321;  Hamilton  v.  El- 
liot, 5  S.  &  R.  375.  Bee  Watenby  v  Moran,  3 
Call,  491;  Andrews  v.  Senter,  32  Maine, 
394. 


(2)  Willard  v.  Henry,  2  N.  H.  122. 

(3)  Plow.  142  ;  Bro.  Abr.  Condition,  83. 
(4;  Lit.  347  :  Co.  Lit.  215  a.     See  infra,  sec. 

46;   2  Cruise,  31. 


(a)  Upon  the  Siime  principle,  a  breacli  of  condition  must,  in  jiencral,  consist  in  some  act, 
not  in  a  mere  declaration.  Tims,  where  the  condition  is  that  certain  persons  shall  have  the 
use  and  occupation  of  a  room  :  mere  denial  of  the  ri<rlit  is  no  brencb — there  must  bea  shutting 
up  ot  the  room,  or  some  similar  act.     llogeboom  v.  Hall,  24  Wend.  146. 

{b]  But  where  a  le^se  is  made,  upon  tiie  condition  that  the  lesst-e,  at  the  end  of  each  year, 
should  {live  bond,  with  surety,  for  the  rent 'of  tiie  ,succeediti<i'  year,  a  failure  to  comply  with 
the  rondition  will  not  work  a  (orfl:'iture,  unless  the  landlord  make  a  demand  of  performance 
at  the  end  of  ilie  year.     Tate  v.  Crowson,  6  Ired.  65. 

(r)  Nor  has  a  creditor  of  one  of  the  heirs  of  the  grantor,  any  remedy  against  the  land, 
unless  it  1)6  by  an  execution  at  law,  agninst  that  portion  of  it  which  may  belong  to  such 
heir,  after  the  right  of  entry  shall  have  been  exercised.     Cross  v.  Carson,  8  Blackfi  138. 


CHAP.  XXVIII.]  ESTATES  OX  CONDITION,  ETC. 

sovereign,  and  not  by  one  claiming  a  title  liostile  to  the  corporation, 
and  to  the  sovereign. (1) 

42  b.  A  statute  provided,  that  a  diversion  of  .salt-works,  to  other  pur- 
poses than  the  manufacture  of  salt,  should  work  a  forfeiture  of  lease- 
hold estate.  Held,  a  partial  diversion  of  a  lot  could  not  be  taken  ad- 
vantage of  by  a  subsequent  iiolder  of  the  leasehold  estate,  utider  an 
agreement  for  an  exchange  of  it  for  other  lands,  lor  tife'purpose  of 
avoiding  such  agreement,  after  be  had  quietly  occupied  the  premises 
for  several  years,  and  the  other  party  had  made  large  improvements  on 
the  land  received  by  him  in  exchange;  such  partial  diversion  being 
known  to  him  at  the  time  of  making  the  agreement,  and  the  statute 
making  a  diversion  a  forfeiture  being  a  public  law,  of  which  he  was 
bound  to  take  notice,  and  where  such  forfeiture,  if  any.  had  been 
waived  by  the  people,  and  a  renewal  of  the  lease  granted.(2) 

48.  A  condition  may  be  of  such  a  nature  that,  although  relating  only 
to  the  grantor  himself,  and  not  broken  during  his  life,  there  may  be  a 
breach  after  his  death,  of  which  the  heir  may  take  advantage. 

44.  A  man  granted  land  to  A,  his  child,  on  condition  that  A  should 
suj)i)ort  him,  pay  his  debts,  and  save  him  from  any  trouble  or  cost  on 
account  of  them,  with  a  clause  of  re-entry.  After  the  father's  death, 
B.  another  child,  presented  a  debt  of  the  father  to  A  for  payment, 
which  was  refused.  Whereupon  B  brings  ejectment  for  a  share  of  the 
land  as  an  heir  at  1  iw.  Held,  the  action  would  lie,  though  this  debt 
had  subjected  the  father  to  no  cost,  &c. — that  clause  in  the  condition 
being  operative  only  during  his  life.(8) 

45.  A  condition,  by  means  of  a  descent,  may  be  disanuexed  from  the 
estate  with  which  it  was  originally  connected.  Thu.s,  although  the  land 
itself  may  descend  to  such  special  heirs,  as  claim  through  the  ancestor, 
from  whom  it  came  to  the  deceased ;  the  condition,  being  reserved  to  heirs 
generally,  will  pass  to  the  heirs  at  ommon  law.  But,  after  the  latter 
have  entered  for  condition  broken,  the  former  may  re-enter  upon  them. 
Where  the  condition  descends  to  one  heir  only,  as  heir  at  common  law, 
but  the  estate  descends  to  several— as  in  the  English  gavd/dnd—ailer 
entry  by  tlie  former,  the  rest  shall  enjoy  the  estate  Avith  him.(4) 

4H.  At  common  law,  as  has  been  stated,  (sec.  42,)  where  a  reversioner 
assigned  his  reversion,  the  assignee  could  not  avail  himself  of  any  con- 
ditions annexed  to  the  particular  estate.  The  conditions  were  regarded 
as  rif/hts  in  adwn,  whicli,  by  the  policy  of  the  law,  were  not  assignable. 
But,  by  St.  82  Hen.  VHl,  c.  84,  the  assignees  of  reversions  are  placed 
on  the  same  footing,  in  regard  to  conditions  and  taking  advantage 
thereof,  as  the  original  lessors.(o) 

47.  An  assignee  of  part  of  the  land  is  not  within  the  statute  ;  but  an 
assignee  of^a?-^  of  i/ie  reversion  is.(6)     The  statute  does  not  apply  to  one 

(1)  Bopardu9i;.Trinity&c,4Sandr  Ch.  f.33. 1      (4)  Paine  v.  Sflmms,  1  And   184  •   Clere  v 

(2)  Iliisi.rook  V.  Paddock,  1  Barb.  G35.        Peoock,  2,  22;  Rob.  Gav.  119-  Go'db  3 

(3)  Jackson  v.  Topping,  1  Wend,  388.  ]  ' 


(a)  Lease  from  a  company,  with  condition  of  re-entry.  Tlie  compnny  beinp  afterwards 
incorporated,  with  a  provision  that  all  contract.s,  Ac,  with  the  company  should  be  valid  • 
belli,  the  corporation  might  avail  it-selfof  the  condition.     Doe  v.  Knebell,  2  Carr.  &  K   66 

(/')  Tliu>«,  ila  lease  bo  marie  of  three  acres,  and  the  reversion  of  two  of  them  granted 
away,  altliouf,Mi  the  rent  will  he  apportionid,  the  condition  is  destroyed,  being  entire  and 
agaiii.«t  common  right.  2  Cruise,  22.  Ihu  it  the  reversion  is  granted"  for'years,  the  grantee 
may  avail  himself  of  a  conditioa.     Co.  Lit.  215,  a. 


388 


ESTATES  ON  CONDITION,  ETC. 


[CHAP.  XXVIII. 


who  comes  to  the  estate  hy  laiv,  as,  for  instance,  by  escheat ;  because 
the  language  of  it  implies,  that  the  assignee  must  be  either  an  assignee 
to,  or  &y,  the  reversioner,  claiming  either  in  the  per  or  ihe  post — that  is, 
one  who  comes  in  by  act  and  limitation  of  the  party.  It  seems,  how- 
ever, that  a  tenant  by  the  curtesy,  or  in  dower,  although  claiming  by 
law,  is  within  the  statute  ;  being  in  ly  ihe  wife  or  the  husband.  Al- 
though the  words  of  the  statute  are  "  for  nou-paj'ment  of  rent,  or  for 
doing  waste,  or  other  forfeiture,"  yet  an  assignee  can  take  advantage  of 
such  conditions  only  as  are  incident  to  the  reversion — like  those  per- 
taining to  rent ;  or  such  as  are  for  the  benefit  of  the  estate — like  those  re- 
lating to  waste  and  repairs  ;  and  not  those  merely  personal — as  for  the 
pajanent  of  a  sum  in  gross.(l) 

48.  It  seems,  that,  in  some  cases,  the  party  upon  whom  a  condition 
is  imposed  may  himself  take  advantage  of  it,  to  avoid  his  own  act. 
Thus,  it  has  been  held,  that  where  there  is  a  lawful  condition  against 
alienation,  under  a  certain  age,  if  a  deed  be  made  before  reaching  this 
age,  and  a  second  after,  the  first  is  void,  and  the  last  valid.(2) 

49.  Entry  for  condition  broken  has  the  effect  of  entirely  defeating 
the  estate  of  the  grantee,  and  restoring  the  grantor  to  the  same  title, 
which  he  had  before  the  convej^ance  was  made.  It  constitutes  a  para- 
mount claim,  and  operates  hj/  relation,  so  as  to  avoid  all  intermediate 
rights  and  incumbrances.  Thus,  although  the  widow  of  a  conditional 
grantee  has  dower,  3^et  an  entry  for  breach  of  condition  will  destroy 
this  right.  And,  whether  made  before  or  after  the  husband's  death,  it 
seems,  will  make  no  difference.(3)(a) 

50.  There  are,  however,  some  exceptions  to  this  principle.(4) 

51.  A  condition  may  be  waived  b}'  the  acts  of  the  party  for  whose 
benefit  it  was  created,  and,  after  being  once  dispensed  with,  can  never 
afterwards  be  enforced.  Thus,  where  land  was  convej-ed  on  condition 
of  paying  a  certain  annuity,  and,  after  a  failure  to  pa}',  the  annuitant 
accepted  the  annuit}' ;  held,  a  perpetual  waiver  of  the  condition.  So, 
a  receipt  by  the  lessor  of  rent,  accruing  after  acts  of  forfeiture  by  the 
lessee,  which  are  known  to  the  lessor,  is  a  waiver  of  the  forfeiture.(5)(&) 

52.  A  father  conveyed  an  estate  to  his  son,  on  condition,  that  unless 
the  son  maintained  his  parents  and  brother  in  a  specified  manner,  and 
properly  cultivated  the  land,  the  conveyance  should  be  void  for  the 
whole  land  during  the  lives  of  the  parents,  and  as  to  one-half  of  the 
land  forever.     The  father  havino-  died,  his  widow  claimed  her  dower 


(1)  Co.  Lit.  215  a;  Hill  v.  Grange,  Plow. 
167. 

(2)  Dougal  V.  Fryer,  2  Misso  40. 

(3)  Lit.  325;  Co.  Lit.  202  a;  Ann  May- 
owe's  case,  1  Rep.  147  b ;  1  RoUe's  Abr. 
474. 

(4)  Co.  Lit.  202  a.  See  Litclifield  i;.  Readv, 
1  Eng.  L.  &  Equ.  460. 


(5)  Clarke  v.  Cummings,  5  Barb.  339 ; 
Chalker  v.  Chalker,  1  Conn.  79.  See  Enfield 
&c.  V.  Connecticut,  &c ,  7  Conn.  45  ;  Dickey 
V.  M'CuUough,  2  Watts  &  S.  100;  Bay  ley  v. 
Homan,  5  Mann.  &  G.  94;  Tliompson  v. 
Bright,  1  Cush.  420 ;  We.stern,  &c.  v.  Kyle,  6 
Gill,  343  ;  Conkling  v.  King,  10  Barb.  372. 


(a)  So,  whore  lands  bought  from  the  government  are  forfeited  for  breach  of  condition,  the 
•widow  has  no  dower.  Rodgers  v.  Rawlings,  8  Por.  326.  One  holding  a  life  estate  leased 
to  the  remainder-man  for  the  life  of  the  lessor,  on  condition  to  be  avoided  for  non-payment 
of  rent;  and  afterwards  etnered  lor  lireaeh  of  condition.  Held,  this  defeated  any  claim  for 
dower  i>y  the  les.see's  widow.     Bcard.slee  v.  Beardslee,  5  Barb.  224. 

(b)  One  tenant  in  common  devised  to  anotiier.  on  condition  he  would  convey  to  his 
daughter  a  part  of  the  land.  No  conveyance  w-as  made,  but  the  daughter  for  a  long  time 
occupied  the  land.     Held,  there  was  no  forfeiture.     Pluramer  v.  Neile,  6  Walts  &  S.  91. 


CHAP.  XXVm.J  ESTATES  ON  CONDITION,  ETC.  389 

instead  of  the  support  tlius  provided  for  her,  and  tlie  son  transferred 
the  land  to  another  person.  After  the  fiither's  death,  the  mother  was 
well  supported,  but  neither  she  nor  the  father  was  supported  in  the 
manner  pointed  out  by  the  deed,  nor  was  the  hand  well  cultivated. 
The  son,  however,  had  always  remained  in  possession,  with  his  parents, 
and  they  had  accepted  the  support  which  he  gave  them,  often  com- 
plaining that  the  condition  was  not  fulfillctl,  but  never  malcing  formal 
entry  or  claim  for  a  breach.  Ileld,  these  facts  showed  a  waiver  of  the 
condition. (l)(a) 

52  a.  The  owner  of  land  made  a  deed  of  a  small  parcel  thereof,  with 
a  house  thereon,  reserving  to  himself  the  privilege  of  a  bridle  road  in 
front  of  the  house,  and  not  to  be  at  any  expense  in  supporting  a  fence 
around  the  land  conveyed ;  and  wlienever  the  grantee,  his  heirs  or 
assigns,  should  neglect  or  refuse  to  support  the  fence,  then  the  deed  to 
be  void  ;  and  subsequently  conveyed  the  residue  to  one  who  removed 
the  fence  without  replacing  it,  and  reconveycd  such  residue  to  the 
grantor,  who  afterwards  entered  upon  the  small  parcel,  claiming  a 
forfeiture  thereof  for  breach  of  the  condition.  Held,  the  condition,  if 
not  merely  personal,  being  designed  to  benefit  the  grantor,  as  owner  of 
the  resitlue  of  the  lot,  attached  to  such  residue,  and  passed  to  the 
grantee  thereof,  whose  removal  of  the  fence  was  an  extinguishment  or 
waiver  of  the  condition  ;  which,  being  thus  determined,  could  not  be 
revived  by  the  reconveyance.  And,  the  reconvej^ance  having  been  in 
mortgage,  held,  further,  it  was  immaterial  in  this  respect,  whether  the 
removal  of  the  fence  took  place  before  or  after  the  execution  of  the 
mortgage.  Keld,  also,  until  reasonable  notice  given,  or  request  made, 
and  neglect  or  refusal  of  the  grantee,  to  replace  the  fence,  there  was  no 
neglect  or  refusal  to  support  the  fence,  within  the  terms  of  the  condi- 
tion.(2) 

5o.  A  condition  may  be  destroyed  by  a  release  or  discharge,  which 
may  be  made  either  to  the  grantee  or  his  assignee,  if  there  be  one. 
And  where  the  grantee  has  limited  the  estate  to  one  for  life,  remainder 
in  fee,  a  release  to  the  tenant  for  life  will  enure  to  the  benefit  of  the 
remainder-man.  It  is  held,  that  if  the  conditions  of  a  deed  have  not 
been  performed,  the  whole  estate,  legal  and  equitable,  will  revert  to  the 
grantor  or  his  heirs,  unless  there  is  proof  of  such,  an  agreement,  or 
specific  acts  amounting  to  evidence  of  such  an  agreement,  on  the  part 
of  the  grantor,  or  his  heirs,  as  would  entitle  the  grantees  to  a  discbarge 
of  the  condition. (3) 

54.  Accord  and  satisf action  is  a  legal  equivalent  for  performance  of  a 
condition  precedent.     So,  where  an  act  is  to  be  done  at  a  certain  time, 

(1)  Willnrd  v.  Henry,  2  N.  II.  120.  I      (3)  Co.  Lit.  291  b,  297  b;   Dolan  v.  Mayor 

(2)  Merrifield  v.  Cobleigh,  4  Cush.  178.         |  &c.,  4  Gill,  304. 


(a)  It  has  been  liekl,  that  forfeiture  of  a  condition  is  not  waived  by  parol  nssent  or  silent 
acquiescence,  nor  by  an  offer  to  accept  immediate  payment.  Jackson  v.  Crysler,  1  John. 
Cas.  125;  Gray  v.  Bianchard  8  Pick.  292;  Hutcheson  v.  M'Nutt,  1  Ham.  21.  It  is  only 
where  rent  is  paid  wiiieh  accrued  after  a  forfeiture,  that  the  acceptance  of  such  payment  ia 
considered  an  affirmance  of  the  lease,  and  a  waiver  of  the  forfeiture.  Hunter  v.  Osterlioudt, 
11  Barb.  33.  A  condition  cannot  be  waived  by  the  reversioner,  after  he  lias  parted  with 
his  reversion.  Commyns  v.  Latimer,  2  Flori.  71.  Performance  of  a  condition  may  bo  pre- 
sumed from  lapse  of  time.     Fox  v.  Phelps,  17  Wend.  393;  20,  437. 


390 


ESTATES  ON  CONDITION,  ETC. 


[CHAP.  XXVIII. 


or  on  demand,  an  acceptance  of  the  act  after  the  time,  or  on  a  second 
demand,  as  and  for  a  performance,  will  save  the  f()rfeiture.(l) 

55.  A  condition  is  to  be  distinguished  from  a  liniitation.  The  latter 
requires  no  entry  to  terminate  the  estate,  but  terminates  it  ijysofado^  by 
the  mere  happening  of  the  event  referred  to.  Thus,  if  A  grant  an 
estate  to  B  till  the  death  of  C,  B's  estate  immediately  comes  to  an  end 
upon  the  death  of  C.(2) 

56.  So,  if  a  man  makes  a  lease  for  a  hundred  years,  if  the  lessee  lives 
so  long,  upon  the  lessee's  death  the  estate  revests  in  the  grantor  without 
entry.  And  a  grantee  of  the  reversion  might  always  take  advantage 
of  a  limitation^  though  not  of  a  condition, 

57.  Where  a  condition  subsequent  is  followed  by  a  limitation  to  a 
third  person,  upon  non-fulfilment  or  breach,  this  is  a  conditional  limita- 
tion. Words  of  limitation  mark  the  period  which  is  to  determine  the 
estate,  but  words  of  condition  render  it  liable  to  be  defeated  in  the  in- 
termediate time.  The  one  specifies  the  utmost  time  of  continuance; 
the  other  marks  some  event,  which,  if  it  takes  place  during  that  time, 
will  defeat  the  estate.  A  life  estate  given  in  the  prior  part  of  a  will 
may  well  be  determined,  by  an  apt  limitation  over,  contained  in  a  sub- 
sequent part. 

58.  A  conditional  limitation  is  of  a  mixed  nature.  Thus,  if  an  estate 
be  limited  to  A  for  life,  provided,  that  when  0  returns  from  Kome,  it 
shall  thenceforth  remain  to  the  use  of  B  in  fee  ;  this  is  a  condition,  be- 
cause it  defeats  the  estate  previously  limited,  wliile  it  is  also  a  limita- 
tion, because  no  entry  is  required  to  take  advantage  of  it.  Such  a  dis- 
position can  be  made,  in  general,  only  by  will  or  a  conveyance  to  uses. 
But  in  New  York  it  may  be  made  by  common  law  conveyanje.(3) 


.    (1)  Richards  v.  Carl,  1  Ind.  313 ;  Hogins 
V.  Arnold,  15  Pick.  259 ;  5  Mann.  &  G.  94. 

(2)  Co.  Lit.  214  b;  Coppage  v.  Alexander, 
2  B  Monr.  316. 

(3)  4  Kent,   121-3  ;   IN.  Y.  Rev.  St  725  ; 


Cogan  V.  Cogan,  Cro.  Eliz.  360 ;  Stearna  v. 
G-odfrev,  16  Maine,  158;  Doe  v.  Crisp,  8  Ad. 
&  Ell  779;  Rochford  v.  Hackman,  10  Eng. 
L.  &  Equ.  64. 


CHAP.  XXIX.]       MORTGAGE— NATURK,  FORM,  EFFECT,  ETC. 


391 


CHAPTER   XXIX. 


MORTGAGE— NATURE,  FORM  AND  EFFECT  OF  A  MORTGAGE. 


1.  Definition  and  liibtory  of  niortgagea. 

2.  Riglit  ofroilcinplic^. 
6.  Ill  fbo  or  for  years. 
6.  Deed  and  (le(easance. 

20.  What  constitutes  a  mortgage  in  Chan- 
cery.    Parol  evidence. 
23.  Peraonalliiibihty  of  mortgagor;  whether 


implied  in  a  mortgagee,  Of  necessary 
to  constitute  one. 

28.  Rijrlit  oC  redemption  caimot  be  re- 
strained ;  mortgage  and  condilionul 
sale,  distinction  between. 

46.  Power  to  sell,  given  to  a  mortgagee. 


1.  A  MORTGAGE  is  a  conditional  conveyance  of  land,  designed  as  secu- 
rity for  the  payment  of  money  or  performance  of  some  other  act,  and 
to  be  void  upon  such  |)aymcnt  or  ]X}rfbrmatice.(a)     The   name   is  de- 

(«)  By  the  English  law,  there  are  two  kinds  of  estates,  held  as  security  for  the  repayment 
of  money;  the  one  acquired  by  some  legal  and  compulsory  process;  tiie  otiier  voluntarily 
conveyed  by  the  liobtor  to  tiie  creditor.  Those  of  the  first  kind  are  called  estates  by  statute 
merchant,  statute  staple  and  degit.  By  the  feudal  law,  tlio  lands  of  a  debtor  were  not  liable 
to  be  taken  by  legal  process,  except  in  the  hands  of  his  heir;  upon  the  ground  that  he 
would  tiiereby,  as  by  a  voluntar}' alienation,  be  disabled  from  performing  his  feudal  services. 
But  in  the  reign  of  Edw.  I.,  in  consequence  of  great  complaints  from  tbieign  merchants  as 
to  tlie  difficulty  of  recovering  their  debts;  a  statute  was  passed,  providing  that  the  debtor 
of  any  merchant  might  be  summoned  before  a  certain  prescribed  triljunal,  to  acknowledge 
the  del)t.  under  his  own  and  the  king's  seal,  and  have  a  day  fi.Kcd  for  payment ;  and  if  pay- 
ment were  not  then  made,  that  by  an  immediate  execution  all  his  lands  should  be  delivered 
to  the  merchant,  to  bold  until  the  debt  was  wholly  levied.  This  species  of  security  was 
called  a  statute  merchant.  Statute  staple  is  a  security  of  a  similar  nature  to  the  one  above 
described,  and  is  delincd  as  a  bond  of  record,  acknowledged  before  tiie  mayor  of  some  tra- 
ding town,  (sometimes  called  estapk  or  stabile,)  and  attested  by  a  public  seal.  Under  this 
sealed  obligation,  execution  might  be  obtained  against  the  lands  of  tl'C  debtor,  in  the  same 
manner  as  under  a  statute  merchant.  Although  these  securities  were  originally  intended 
for  the  benefit  of  merchants  only,  j'et,  on  account  of  their  cheapness  and  convenifnco,  they 
became  generally  adopted,  until  in  the  reign  of  Hen.  YIII^  an  act  was  passed,  restricting 
statutes  staple  to  merchants.  The  same  statute,  however,  created  a  new  kind  of  security, 
called  a  recognizance  in  the  nature  of  a  statute  staple,  being  a  liond  acknowledged  betbre  cer- 
tain judjjes  or  magistrates,  and  enrolled;  upon  which  tiie  same  advantages  may  be  had  as 
upon  a  statute  staple. 

Another  compulsory  security  for  payment  of  debts  was  provided  bj'  St.  Westmin.  "2,  13 
Edw.  I,  ch.  18,  which  authorized  a  judgment  creditor  to  elect,  either  to  have  a  writ  of  fieri 
facias,  to  be  levied  upon  per.'^onal  property,  or  else  that  the  debtor  siiould  deliver  him  all 
his  chattels,  with  certain  exce[)tions,  and  une-half  his  lands,  until  the  debt  was  levied,  upon  a 
reasonable  price  or  extent.  From  this  right  of  election,  the  new  execution  provided  as  above 
derived  the  name  of  elegit  The  elfeet  of  the  statute  was,  that  a  judgment  became  a  lien 
upon  the  debtor's  lands.  So,  also,  a  debtor,  upon  executing  a  bond  for  the  debt,  may  also 
give  a  W'lrrant  of  attorney,  authorizing  some  attorney  of  the  court  to  acknowledge  a 
judgment  for  the  money,  upon  which  acknowledgment  an  elegit  may  issue,  as  in  case  of  an 
adversary  suit.  Various  statutes  have  been  pa.ssed,  requiring  judgments  to  be  docketed, 
registered  or  recorded,  in  order  to  give  them  priority  of  lien  over  subsequent  transfers  or 
incuin'^ranccs.  When  a  writ  o(  elegit  is  sued  out,  the  sherilTempannels  a  jury,  upon  whose 
appraisal  he  sets  out  and  delivers  a  moiety  of  tlio  debtor's  lands  to  the  plaintifl"  iiy  metes 
and  bounds.  All  estates  in  fee-simple  may  be  thus  taken;  so,  a  reversion,  an  estate  tail, 
a  rent-charge,  a  term  for  years.  This  last  may  also  be  sold  as  personal  property.  Although 
the  estate  acquired  by  the  creditor  is  uncertain  as  to  duration,  being  determinable  only  on 
payment  of  the  debt,  yet  it  is  but  a  chattel  interest,  which  passes  to  executors.  The  se- 
curity follows  the  claim  secured. 

These  are  the  general  rules  of  the  English  law,  relating  to  eststes  held  by  compulsory 
process  for  payment  of  debts.  They  are  practically  of  little  consequence  in  the  United 
States,  because  eaeii  State  has  for  itself,  by  minute  statutory  provisions,  regulated  the  subject 
of  levying  or  extending  executions  upon  real  properly,  a  summarv  view  of  which  will  bo 
given  in  a  subsequent  portion  of  this  work. 

The  subject  of  estates,  voluntarily  conveyed  to  a  creditor  as  security,  is  considered  iu  the 
text. 


592 


MORTGAGE— NATURE, 


[CHAP.  XXIX. 


rived  from  the  fact,  that  by  the  old  law,  where  land  was  thus  conveyed, 
unless  the  condition  was  performed  at  the  day,  the  estate  became  dead 
or  extinct.(a)  A  mortgage  was  in  fact  a  feoffment  upon  condition,  or 
the  creation  of  a  base  or  determinable  fee,  with  a  right  of  reverter  at- 
tached to  it.  The  debt  was  required  to  be  tendered  at  the  time  and 
place  prescribed ;  and,  in  general,  the  strict  rules  of  law  pertaining  to 
conditions  were  rigidly  enforced  in  relation  to  mortg^ges.(l)(^^) 

2.  At  an  early  period, (c)  however,  the  Court  of  Chancery  interfered 
to  relieve  against  the  hardship  of  an  absolute  forfeiture,  upon  payment 
of  the  debt,  with  interest  and  costs,  if  made  in  a  reasonable  time  after 
the  day  appointed.  Chancellor  Kent  remarks,  "  the  case  of  mortgages 
is  one  of  the  most  splendid  instances  in  the  history  of  our  jurispru- 
dence, of  the  triumph  of  equitable  principles  over  technical  rules,  and 
of  the  homage  which  those  principles  have  received  by  their  adoption 
in  the  courts  of  law."(2) 

8.  It  was  at  first  held,  that  the  mortgagor  had  not  the  right  of  re- 
acquiring his  estate,  as  against  those  holding  the  estate  of  the  mortgagee 
in  thejiost,  as,  for  instance,  the  widow  having  a  right  of  dower,  or  the  lord 
the  right  of  escheat.  But  this  distinction  in  favor  of  parties  thus  hold- 
ing the  land  has  long  been  wholly  done  away .(3) 

4.  The  mortgagor's  right  to  regain  his  estate  b}^  application  to  the 
Court  of  Chancery,  after  breach  of  condition,  is  called  an  equity  of 
redemption  ;  and  the  same  phrase  is  generally,  though  it  would  seem 
somewhat  inaccuratel}^,  used,  to  express  the  interest  remaining  in  the 
mortgagor,  even  before  breach  of  condition.  But  in  the  Statutes  of 
North  Carolina  and  Florida,  the  distinction  between  these  two  kinds  of 
estate  seems  to  be  carefully  observed  ;  the  former  being  entitled  an 
equit}^  of  redemption,  and  the  latter  a  legcd  right  of  redemption.i^) 

5.  A  mortgage  may  be  made  by  a  conveyance  either  in  fee  or  for 
years.     The  latter  form  is  rarely  adopted  in  the  United  States.     In 


(1)  "U'ade's  case,  5  Co.  114;  Goodall's  case, 
5  Co.  95;  Lit.  sec.  332;  Co.  Lit.  210  b;  4 
Kent,  139;  Parsons  v  Welles,  17  Mass.  421  ; 
Pride  V  Boyce,  Rice,  275;  Loyd  t;.  Currin,  3 
Humph.  462.  See  Chapman  v.  Turner,  1 
Call,  252;  Coote,  139;  Hebron  v.  Centre, 
&c.,  11  N.  H.   571;  Montgomery  v.  Bruere, 


1  South.  268  ;    Lull   v.    Matthews,  19  Vera. 
322. 

(2)  4  Kent,    158.    See  Clapp   v.   Titus,  9 
Term.  211. 

(3)  2  Cruise,  79-80. 

(4)  1  N.  C.  Rev.  St.  266  ;  Thomp.  Dig.  355  ; 
State  V.  Laval,  4  McCord,  340. 


(a)  This  is  the  chief  point  of  distinction  between  the  mortuum  vadium  or  mortgage,  and 
the  vivum  vadium,  or  living  pledge,  which  was  used  ip  the  early  periods  of  the  English  law, 
but  is  now  for  tlie  most  part  obsolete.  It  was  a  conveyance  ot  land.s  by  debtor  to  creditor, 
to  hold  till  tiie  rents  and  profits  should  amount  to  tlie  sum  borrowed,  and  then  revert  to  the 
borrower.  See  Poindexter  v.  M'Cannon,  1  Bad.  &  Dev.  Equ.  377;  Thayer  v.  Mann,  19 
Pick.  538;  Coote.  41,  43,  207,  222,  223;  Teulon  t.  Curtis,  Younge,  619.  As  to  the  form 
of  the  condition  of  a  mortgage,  see  Skinner  v.  Cox,  4  Dev.  59;  Stewart  v.  Hutchins,  6  Hill, 
143;  Palmer  v.  Gurnsey,  7  Wend.  248;  Cooper  v.  Whitney,  3  Hill,  95;  Baldwin  v.  Jen- 
kins. 23  Miss.  206;  Cotterell  v.  Long,  20  Ohio,  464. 

(b)  Tlie  ancient  law,  however,  which  may  be  considered  as  still  in  force,  was  as  rigid  in  pro- 
tecting the  rights  of  the  mortgagor,  where  he  was  guilty  of  no  neglect,  as  in  decreeing  an 
absolute  forfeiture  for  the  slightest  non-compliance  with  the  condition  of  the  mortgage. 
Thus,  if  a  legal  tender  of  the  mortgage  debt  is  made  at  the  day  and  refused;  the  land  is 
forever  discharged  of  the  incumbrance,  though  the  debt  remains.  Swett  v.  Horn,  1  N.  H. 
332.  333.  See  Merritt  v.  Lambert,  7  Paige,  344;  Edwards  v.  Ins.  Co.,  21  Wend.  476;  26 
lb.  541  ;  Arnot  v.  Post,  6  Hill,  65;  Smith  v.  Kelley,  27  Maine,  237. 

(c)  When  this  was;  see  Roscarrick  v.  Barton,  1  Cha.  Cas.  219;  Hale's  History  of  Com- 
mon Law,  eh.  3  ;  Rot.  Pari,  vol.  3,  p.  258 ;  Emanuel,  &c.  v.  Evans,  1  Cha.  Rep.  10 ;  2 
Cruise,  62. 


CHAP.  XXIX.] 


FORM,  EFFKCT,  ETC. 


393 


frisson ri,  inortgapfes  of  leaseholds  for  more  tlian  twenty  3'cars  are  treated 
like  mortgages  of  estates  in  fee.(l)(a) 

6.  A  im^rtgage  may  be  made  by  an  absolute  deed,  and  ade/easa7ice{b) 
baek,  instead  of  a  single  conditional  deed.  In  England,  this  form  of 
mort<:age  has  been  regarded  unfavorably  by  the  eourts,  as  indicating 
fraud,  and  injurious  to  the  mortgagor;  because  the  defeasance  might 
be  lost,  and  an  absolute  title  set  ui).(2)  "* 

7.  Tlie  statute  law,  in  many  of  the  United  States,  expressly  recog- 
nizes this  form  of  mortgage  ;  and,  as  deeds  are  universally  registered, 
the  inennveniences  abovfc  suggested  are  less  serious  here  than  in  P^ng- 
land.  In  Delaware,  the  statute  speaks  of  "a  defeasance,  or  a  writtea 
contract  in  the  nature  of  a  defeasance,  or  for  reconveyance  of  the  pre- 
mises, or  any  part  thereof,"  In  Rhode  Island,  of  a  bond  of  defeasance, 
or  other  instrument  which  creates  a  mortgage  or  redeemable  estate. 
Similar  terms  are  used  in  New  Jersc}'  and  Illinois;  in  the  former  of 
whic-h  States,  any  xcriting  may  be  a  defeasance;  but,  ordinarily,  the 
word  dffeasaiice  only  is  used.  In  New  Hampshire,  the  condition  of  the 
mortgage  must  be  contained  in  the  deed  itseir.(c)  By  the  Revi.-ed 
Statutes,  a  mortgage  is  defined,  as  a  conveyance  to  secure  payment 
of  money,  or  performance  of  any  other  thing  stated  in  the  conditions 
thereof.  In  Florida,  all  writings  of  conveyance  to  secure  payment  of 
money  are  mortgages.(o) 

8.  It  is  the  general  rule,  that  the  defeasance  shall  be  a  part  of  the 
same  transaction  with  the  conveyance.  A  conve3-ance  must  be  a  mort- 
gage at  the  time  of  its  inception  ;  it  never  can  become  such  b}^  any  subse- 
quent act  of  the  parties.  If  there  ever  was  a  moment  when  it  could  be 
consiilered  only  as  an  an  absolute  estate,  it  must  ever  remain  so.  But 
provided  both  instruments  are  parts  of  one  transaction,  the  defeasance 


(1)  Misso.  St.  410.  See  Wheeler  u.  Monte- 
flore,  2  Ad.  &  Ell.  N.  13.^;  Edwards  v. 
Jones,  1  Coll.  Cha.  247;  Coote,  156,  157  ; 
Phipps  V.  Budd,  2  Eiig.  L.  &  Equ.  137  ; 
Kearney  V.  Post,  1  Sandf.  105;  Budeley  v. 
Masscy.  G  Enp.  L.  &  Kqu.  H56. 

(2)  Colterell  v.  Purchase,  Forr.  63;  Sel. 
Ca.s.  in  Clia.  9;  Wright  v.  Bates,  13  Verm. 
341 ;  Harrison  v.  Lemon,  3  Blackf.  52;  Kelly 
V.  Tho  npson,  7  Walts,  401 ;  Holmes  v.  Grant, 
8  Paige,  243;    Miller  v.  Hatnblet,  11   Yerm. 


499 ;  Jnqnes  v.  "Weeks,  7  "Watts,  201 ;  Cliara- 
liers  V.  Hise,  2  Dev.  &  B.  305 ;  Watera  v. 
Randall,  6  Met.  479;  Manufrs.,  &c.  v.  Bank, 
&c.,  7  W.  &  S.  335  ;  Scott  v.  McFarland,  13 
Mass.  309. 

(3)  Lund  V  Lund.  1  N.  H.  39 ;  Erskine  v. 
Townsend,  2  Mass.  493  ;  Wright,  44  ;  Dela. 
St.  1829,  91;  R.  L  L.  204;  1  X.  J.  L.  464; 
lUin.  Rev.  L.  131;  N.  H.  Rev.  St.  245; 
Thorap.  Dig.  370 ;  N.  J.  Rev.  Sts.  C58. 


(a)  A  lease  for  years  by  indenture,  in  which  the  lessor  acknowledges  the  receipt  in  ad- 
vance of"  a  certain  sum,  in  full  for  rent  during  the  term,  and  tho  lessee  covenants  to  re- 
convey  on  repayment  thereof  witii  interest,  is  a  mortgage,  and  subject  to  the  same  privi- 
leges witli  a  mortgage  of  the  freehold.  Xugent  v.  Riley,  1  Met.  117.  So,  also,  though 
exemited  only  by  the  lessor,  if  the  lessee  accepts  and  takes  possession  under  it.     lb. 

In  sticli  case,  though  tiiere  is  technically  no  covenant  by  the  lessee,  upon  which  an  action 
will  lie,  yet.  if  he  underlets  and  receives  rent  during  the  term,  to  the  full  amount  of  his 
payment,  with  interest,  his  estate  for  years  thereby  ceases,  and  the  lessor  is  restored  lo  his 
old  title.  If  he  receives  more  than  that  amount,  the  surplus  is  received  by  him,  not  as 
mortgagee,  but  for  the  lessor,  who  may  recover  it  ia  an  action  for  money  had  and  re- 
ceived,    lb. 

(/;)  See  Defeasance,  vol.  2.  To  defeat  a  deed,  it  must,  in  general,  bo  itself  a  deed,  or  na 
insirumen;  under  seal.  Whether  a  defeasance  is  necessarily  under  seal,  see  22  Pick.  526 ; 
Parsons  V.  Mumford,  3  Barb.  Clia.  152  ;  Moore  v.  Madden,  2  Eng.  530. 

(c)  Reference  to  a  bond,  made  with  the  deed,  and  containing  the  condition,  is  a  substan- 
tial compliance  with  the  statute.  Bassett  v.  Bassett,  10  N.  H.  64.  See  Lifft  v.  Walker, 
lb.  150. 


394 


MORTGAGE— NATURE, 


[CHAP.  XXIX. 


may  be  dated  after  the  deed.  In  Maine,  they  must  bear  the  same 
date.(l) 

9.  So,  a  condition  may  constitute  a  mortgage,  if  written  on  the  back 
of  an  absolute  deed,  though  without  signature  or  sea].(2) 

10.  Where  one  conveys  land  for  a  certain  consideration,  and  the 
grantee  covenants  to  reconvey,  on  payment  of  that  sum,  within  one 
year,  this  is  a  mortgage,  notwithstanding  parol  evidence  that  the  parties 
intended  otherwise. (8) 

11.  But  a  covenant  by  the  grantee,  to  reconvey  at  an  agreed  price, 
unless  certain  improvements  shall  be  commenced  within  a  given  time, 
is  not  a  condition. (4) 

12.  A  conveys  land  to  B,  who,  two  years  afterwards,  gives  A  a  bond 
to  convey  the  land  to  the  wife  of  A,  upon  payment  of  certain  notes. 
Held,  no  mortgage;  and  parol  proof  is  inadmissible,  that  B  agreed  to 
A's  keeping  possession,  that  the  deed  was  given  as  security,  and  the 
bond  not  made  at  the  time,  merely  because  the  amount  due  upon  the 
notes  was  not  then  ascertained.(5) 

"^  13.  A  gave  to  B  the  following  receipt  or  acknowledgment :  "  this  day 

received  of  B  a  deed  of,  &;c.,  for  and  in  consideration  of  dollars, 

paid  by  my  recognizance,  and  other  demands  against  him  ;  if  on  final 
settlement  a  balance  shall  be  due  him,  I  agree  to  pay  it  or  reconvey 
to  him,  on  being  repaid  for  my  advances  and  trouble ;  and  I  will  re- 
turn all  that  the  land  brings,  besides  repaying  me."  A  afterwards  sold 
the  land.  Held,  this  did  not  constitute  a  mortgage ;  that  B  had  no 
interest,  liable  to  his  creditors,  or  which  a  court  of  equity  would  re- 
cognize, inasmuch  as  A  had  his  election,  either  to  reconvey  the  land 
or  |)ay  the  surplus  balance,  and  had  elected  the  latter  bv  conveying 
the  land.(6)(a) 


(1)  Lund  V.  Lund,  1  N.  H.  41 ;  Harrison  v. 
Trustees,  &c.,  12  Mass.  456;  Bod  well  v. 
Webster,  13  Pick.  413;  Kelly  v.  Thompson, 
7  Watts,  401 ;  Me.  Rev.  St.  553  ;  2  Greenl. 
Cruise.  81  n.  See  Freeman  v.  Baldwin,  13 
Ala.  246 ;  Kerr  v.  Gilmore,  6  Watts,  405  ; 
Brown  v.  Wright,  5  Yerg.  57. 

(2)  Stocking  v.  Fairchild,  5  Pick.  181; 
Perkins  v.  Dibble,  10  Ohio,  433;  Baldwin  v. 
Jenkins,  23  Miss.  206. 


(3)  Colwell  V.  Woods,  3  Watts,  188;  Ham- 
mond V.  Hopkins,  3  Yerg.  525  ;  Cooper  v. 
Whitney,  3  Hill,  395. 

(4)  Cunningham  v.  Harper,  Wright,  366. 
See  Humphreys  v.  Snyder,  1  Morr.  (Iowa) 
263;  Davenport  v.  Bartletl,  9  Ala.  179. 

(5)  Bennock  v.  Whipple,  3  Fairf.  346  ; 
Lund  V.  Lund,  1  N.  H.  39. 

(6)  Fuller  V.  Pratt,  1  Fairf.  197;  Holmes 
V.  Grant,  8  Paige,  243. 


(a)  If  such  a  deed  recites,  as  its  consideration,  an  indebtedness  of  the  grantor,  which  is 
not  discharged ;  and  is  given  by  one  trustee  to  another  for  the  beneht  of  the  cestui,  to  whom 
the  debt  is  due;  and  contains  a  limitation  over  upon  his  death ;  and  is  subject  to  being  dis- 
claimed by  the  cestui  upon  coming  of  age ;  still  it  is  not  a  mortgage.  Eckford  v.  De  Kay, 
26  Wend." 29. 

Where  an  absolute  deed  is  given,  but  intended  as  a  mortgage,  it  is  void  as  against  credi- 
tors, &c.,  although  afterwards  tlie  parties  agree  that  the  grantee  have  the  whole  title,  and 
the  full  value  of  the  land  is  paid  to  creditors,  according  to  contract.  So,  although  a  second 
delivery  is  made  of  the  deed;  because,  the  title  having  once  passed,  it  cannot  tlius  be  di- 
vested. Halcombe  v.  Ray,  1  Jred.  340.  A  conveyance  signed  by  both  grantor  and  grantee, 
and  providing  that  the  grantee  shall  sell  the  property,  pay  debts  due  him  from  the  proceeds, 
and  the  surplus  to  the  grantor;  constitutes  a  trust,  in  the  nature  of  a  mortgage.  Cross  v. 
Coleman,  6  Dana,  446. 

An  absolute  deed  was  made  to  a  creditor,  with  the  understanding  that  he  should  pay  his 
own  debt,  indemnify  himself  against  his  liabilities,  and  satisly  other  creditors,  and  pay  the 
balance  to  the  debtor's  wife  and  children.  Held,  the  transaction  was  a  mortgage  as  to  the 
debt  of  the  grantee,  and  a  trust  for  the  balance.     McLanahau  v.  McLanahan,  6  Humph.  99. 

A  conveyance  to  a  trustee,  with  power  to  sell,  pay  a  debt  from  the  proceeds,  and  deliver 


CHAP.  XXIX.]  FORM,  EFFECT,  ETC.  395 

14.  A  bond  delivered  to  a  third  person  as  an  escroiv,  will  not  consti- 
tute a  defeasance,  uidess  the  eunditiun  on  which  it  is  t(j  be  delivered 
to  the  obligee  is  perl'ornicd. 

15.  A,  having  borrowed  money  from  B,  conveys  land  to  him.  B 
signs  a  bond  of  dt-feasance,  which,  by  mutual  agreement,  is  left  with  C, 
to  be  delivered  by  him  to  A,  if  A  repay  the  money  borrovvid,  within  a 
certain  time.  The  time  having  elapsed,  without  rcpaynvefjt,  C  delivers 
the  bond  to  B.  Held,  although,  if  A  had  repaid  the  money  within  the 
time,  the  bond  would  have  operated  as  a  defeasance  hijrelaliun  to  the  first 
ddiuery,  yet,  as  B  held  no  security  for  the  money,  the  transaction  did 
not  constitute  a  mortgagc.(l) 

1(J.  In  general,  a  deleasance  must  hQ  recorded  or  registered.  Omission 
to  register  the  defeasance  makes  the  conveyance  absolute  as  to  all  per- 
sons but  the  parties  and  their  representatives,  and  those  having  actual 
notice.  And,  it  seems,  possession  by  the  grantor  will  be  no  equivalent 
for  that  registration. (2)(tt) 

17.  Where  a  deed  is  given,  accompanied  by  a  defeasance,  Avhich  is 
not  recorded;  a  subsequent  surrender  and  cancelling  of  such  defeasance, 
by  agreement,  for  the  purpose  of  giving  the  grantee  an  absolute  title, 
without  unfairness  between  the  parties  or  as  to  strangers,  and  before 
any  rights  of  creditors  have  intervened,  will  vest  the  absolute  title  in 
the  grantee.(3)(6) 

18.  Where  the  obligee  in  a  bond  of  defeasance  has  treated  it  by  his 
acts  as  constituting  a  mortgage,  he  cannot  maintain  an  action  upon  it 
as  a  contract.  * 

(1)  Bodwell  V.  "U'ebster,  13  Pick.  411.  See  ham,  2  John.  Cha.  182;  Fuller  v.  Pratt,  1 
Carey  v.  Rawson,  8  Mass.  159.  I  F;iirf:i97;  Masa  Rev.  Sts.  407.  See  Friedley 

(2)  (Jrimstone   v    Carter.    .3   Pai^e,    421;  \v.  Hamilton,  17  S.  &  R.  70  ;  3  Paiore,  421. 
Wliiliiek  V.  Kane,  1  Paige,  202  ;  Dey  v.  Duu- 1      (3)  Trull  v.  Skinner,  17  Pick.  213. 


iiie  l.;ii;iin;i.-  io  in'  i;i;uiior,  upon  his  failure  to  pay  the  debt;  is  a  mortgage.  'Woodruff  v. 
Rohl),  19  Ohio,  212. 

But  a  conveyance,  with  an  agreement  that  the  grantor  may  have  back  the  land  upon 
payment  of  the  purchase-money  and  interest  in  two  years,  or  before  that  time,  if  it  should 
be  sold  for  a  larger  sum,  but  both  f)arlies  speaking  of  a  sale,  and  the  price  being  tlie  full 
value  of  the  land;  is  not  a  mortu'age.     King  v.  Kincey,  1  Ired.  Equ.  187. 

An  insirument  of  defeasance  may  create  a  mortgage,  tliough  the  parties  have  acquiesced 
for  a  long  lime  after  tiie  period  of  payment  stipulated  therein,  in  the  conveyance  of  the 
projKTty  ;   more  especially  if  it  is  a  reversionary  interest.     Waters  v.  Mynn,  14  Jur.  H41. 

(a)  In  Delaware  and  New  Jersej',  the  grantee  of  the  land  is  required  to  record  a  note  or 
abstract  of  the  defea-sauce,  with  his  deed,  in  order  to  give  validity  to  tiie  registry  of  the  lat- 
ter. But.  in  Delaware,  unless  the  grantor  also  record  the  defeasance  within  a  certain  time, 
it  will  be  void  again.st  bona  fids  purchasers.  By  a  statute  of  Illinois,  a  party  "shall  not  iiave 
the  benefit"  of  a  defeasance,  unless  recorded  within  30  days.  This  would  seem  to  render 
registration  necessary  even  as  between  the  parties.  la  Pennsylvania,  the  defeasance  must 
be  recorded  as  against  creditors,  &c.  So,  in  Michigan,  notice  to  a  ])urc}uiser  Is  a  good  substi- 
tute for  registration.  But  not  to  a  judgment  creditor,  or  vendee,  on  execution,  lllin.  Rev. 
L.  131  ;  Jaques  v.  Weeks,  7  Watts,  201  ;  Mich.  Rev  St.  261.  Actual  notice  dispenses  with 
registration  in  Massachusetts.  The  principle  applies  to  the  assignee  of  the  grantor  under 
the  insolvent  law.     Stetson  v.  Gulliver,  2  Cusii.  494. 

In  Maine,  implied  notice,  existing  prior  to  the  Revised  Statutes,  was  binding  upon  an  at- 
taching creditor.  Mc'Laughlin  v.  Slitplierd,  32  Maine,  143.  The  rule  as  to  the  recording 
of  a  d<3leasance  applies  only  to  u  bond/ro/zi  the  grantee  to  tlie  grantor ;  not  to  a  bond  from 
the  grantor  to  the  grantee,  secured  by  the  conveyance.     Noyes  v.  Sturdivant,  6  Shepl.  104. 

(b)  After  such  cancellation,  the  grantee  agreed  by  another  deed  to  convey  on  certain  termg 
to  tiie  grantor.  Held,  as  this  deed  was  subsequent  to  the  original  one,  not  nartof  the  same 
trims  iction,  nor  intended  nor  understood  as  a  defea.sance,  it  did  not  either  continue  the  ori- 
ginal right  of  redemption,  or  constitute  with  the  lirst  deed  a  new  mortgage.     17  Pick.  213. 


396  MORTGAGE— NATURE,  [CHAP.  XXIX. 

19.  A  conveys  land  to  B,  B  gives  back  a  bond,  recitinor  that  the 
consideration  of  the  deed  was  to  indemnify  him  from  his  liability  for  A 
upon  a  certain  note,  and  providing  that,  if  A  pays  the  note  at  a  certain 
time,  and  B  does  not  reconvey  the  land  upon  demand,  the  obligation 
shall  be  binding.  A  paid  the  note  within  the  time  and  demanded  a 
reconveyance,  and  then  transferred  all  his  interest  in  the  land  to  C.  It 
seems,  this  bond  made  the  transaction  a  mortgage.  Held,  A  could  not 
maintain  an  action  upon  the  bond.(l) 

20.  In  addition  to  the  class  of  strictly  legal  defeasances,  being  written 
a?2fZ -sea/ecnnst rumen ts,  and  to  written  instruments  not  under  seal,  which 
are  often  allowed  the  same  effect ;  even  parol  evidence  is  frequently  ad- 
mitted, for  the  purpose  of  converting  an  absolute  deed  into  a  mortgage. 
This  apparent  departure  from  the  well-established  rule,  which  excludes 
parol  evidence  to  control  written  instruments,  has  been  sometimes  re- 
stricted to  courts  of  equit}^,  and  sometimes  to  casf^s  of  mistake,  accident, 
surprise,  fraud  and  trust,  which  constitute  peculiar  grounds  of  Chancery 
jurisdiction,  and  may  always  be  shown  by  parol  evidence.  But  the 
prevailing  current  of  decisions  now  tends  to  do  away  these  limitations, 
and  to  establish  the  general  proposition,  that  an  absolute  deed  may  be 
proved  to  be  a  mortgage  by  parol  evidence.  The  principle  has  been 
earnestly  resisted,  more  especially  in  courts  of  law,  acting  as  such,  or 
invested  with  merely  limited  equity  jurisdiction.  Thus,  in  Massachu- 
setts and  New  Hampshire,  it  is  held,  that,  before  the  court  can  exercise 
Chancery  powers,  it  must  decide,  as  a  court  of  law,  ivhether  there  is  a 
mortgage ;  and  this  point  cannot  be  proved  by  parol  evidence.  So,  in 
New  York,  Maryland,  North  Carolina,  Kentucky,  Tennessee,  Missis- 
sippi and  Missouri,  there  have  been  decisions  against  the  admissibility 
of  parol  evidence,  to  prove  an  absolute  deed  a  mortgage,  except  under 
special  circumstances;  but  the  prevailing  American  doctrine  is  as  above 
stated. (a) 

(1)  Hoginst;.  Arnold,  15  Pick.  259. 


(a)  The  followino;  may  be  cited  as  the  leading:  English  cases  upon  this  subject.  Jason 
V.  Eyres,  2  Cha.  Cas.  35;  Joynes  v.  Statham,  3  Atk.  387;  Maxwell  v.  Montacute,  Prec. 
Ch.  526  ;  "Walker  v.  Walker,  2  Atk.  99 ;  Youno;  v.  Peachy,  lb.  257  ;  Cottington  v.  Fletcher, 
lb.  155  ;  Hampton  v.  Spencer,  2  Vern.  288;  Beubow  v.  Townsend,  1  My.  &  K.  506  ;  Baker 
V.  Wind,  1  Vez.  160. 

In  Massachusetts,  Kelleran  v.  Brown,  4  Mass.  443;  Levering  v.  Fogg,  18  Pick.  540; 
Fowler  v.  Rice,  17.  100,  22.  526 ;  Boyd  v.  Stone,  11  Mass.  342. 

In  New  Hampshire,  1  N.  H.  41;  Bickford  v.  Daniels,  271;  Runlet  v.  Otis,  lb.  167; 
Wendell  v.  K  il.,  &c ,  9.  404;   Clark  v.  Ho^,bs,  11,  122. 

In  Vermont,  Campbell  v.  Worthitigton,  6  Verm.  448;  Baxter  v.  Willey,  9,  280;  Wright 
V.  Bates,  13,  348;   Washburn  v.  Titus,  9,  211. 

In  Connecticut,  Bacon  v.  Brown,  19  Conn,  29. 

In  New  York,  the  decisions  have  been  somewhat  conflicting;  but  the  prevailing  doctrine 
favors  the  admission  of  parol  evidence,  both  at  law  and  in  equity.  See  Moses  v.  Murgatroyd, 
1  John.  Cha.  119;  Marks  v.  Pell,  lb.  599;  Stevens  v.  Cooper,  lb.  425;  Strong  v.  Stewart, 
4,  167  ;  Jackson  v.  Jackson,  5  Cow.  1 73 ;  Whitlick  v.  Katie,  1  Paige,  202  ;  Martin  v.  Rapelye, 
3  Kdw.  229;  Walton  v.  Croiily,  14  Wend.  63;  Patchin  v.  Pierce,  12,  61;  Yan  Buren  v. 
Olmstead,  5  Paige,  9;  Swart  v.  Service,  21  Wend.  36;  M'Intyre  v.  Humphreys,  1  Hoffra. 
31 ;  Holmes  v.  Grant,  8  Paige,  243 ;  Roach  v.  Cosine,  9  Wend.  227  ;  W^alton  v.  Cronly,  14, 
63 ;  Eckford  v.  DeKay,  26,  39 ;  Webb  v.  Rice,  1  Hill,  606 ;  Brown  v.  Dewey,  2  Barb.  28 ; 
Taylor  v.  Baldwin,  10  Barb.  582 ;  (the  latest  case,  and  adverse  to  the  admission  of  parol 
evidence.) 

As  to  the  practice  in  Penn.sylvania,  see  Peterson  v.  Willing,  3  Dall.  506 ;  Wharf  v.  Howell, 
5  Binn.  499  ;  Jaques  v.  Weekj^,  7  ^Yatts,  268. 

In  North  Carolina,  Blackwell  v.  Overby,  6  Ired.  Equ.  38 ;  Kelly  v.  Bryan,  6  Ired.  283  ; 


criAP.  XXIX.] 


FORM,  EFFECT,  ETC. 


897 


21,  A  mortgage  sometimes  contains  a  covenant  to  repay  tbc  money 
borrowed,  or  to  pay  the  debt  secured  ;  which  creates  a.  2Jf:rso)tal  lialnlily 
in  the  mortgagor.  In  this  country,  the  more  common  practice  is,  that 
the  proviso  of  the  deed  refers  to  a  bond,  note  or  oi\\ev  personal  securily, 
n>ade  at  the  same  time,  upon  the  payment  of  which,  both  the  mortgage 
and  the  j)i'rsoiial  security  are  to  become  void.  In  this  case,*  also,  the 
m()rti:ag(»r  is,  of  course,  jjersonally  liable  for  the  debt.  T\*Tietlier  in  the 
absence  i)f  such  covenant,  bond  or  note,  the  mortgage  itself  creates  a 
})erson;d  liability,  has  been  a  matter  of  somewhat  varying  decision. 
Tlie  prevailing  doctrine  is,  that  it  does  not,  unless  the  deed  contains  an 
express  or  implied  admission  of  a  debt  due,  without  any  accompanying 
agreement  to  rely  wholl}'  upon  the  property  for  its  security  or  payment. 
But  such  an  agreement  might  perhaps  be  inferred,  Irom  the  mere  fiict 
of  the  a))senee  of  a  direct  promise,  contrary  to  j)revailing  usage.  In 
case  o^  borrowed  ynoneij,  a  mortgage  is  considered,  in  England,  as  a  sim- 
])lc  contract  credit ;  and  assumpsit  lies  to  recover  it.  So  it  has  been 
held,  that,  upon  a  recital  of  indebtedness  in  the  mortgage,  an  action  of 
debt  may  be  maintained,  as  upon  a  covenant.  So,  where  one  person 
pays  money  for  the  benefit  of  another,  and  takes  a  mortgage  to  secure 
its  repayment;  the  former  is  said  to  have  a  remedy  either  m  rem  or  in 
2:)ersonam.{l){a) 

22.  Another  point,  upon  wliicli  there  has  been  much  discussion  and 
variet}'  of  opinion,  is  whether  a  conveyance  of  land  given  as  security 
can  be  considered  as  technically  a  mortgage,  without  an  accompanying 
personal  obligation  of  the  grantor.  Upon  this  subject,  it  is  now  the 
prevailing  and  well  established  doctrine,  that  although  the  absence  of 
-uch  personal  obligation  may  raise  a  presumption  that  the  transaction 
IS  a  conditional  sale  and  not  a  mortgage  ;  still  it  is  by  no  means  conclu- 
sive, and  the  grantor  may  have  all  the  rights  of  a  mortgagor  as  to  re- 
demption and  otherwise.     If  the  land  is  put  in  pledge,  on  condition,  for 


(1)  Ancnstcr  v.  Mnyer,  1  Bro.  4G4;  Floyer 
V.  Lavingtoii.  1  P.  Wtns.  2G8;  Yates  i;.  Ash- 
toii.  4  Qu.  B.  182;  8  Mass.  5G-t;  Peiiiiiman 
V.  Hoilis,  13  M:ia3.  4:^0;  Conifer  i'.  Lancaster, 
6  Yerg.  477  ;  Kinj;  v.  King.  3  P.  Wms.  358 ; 
•Courtney  v.  Taylor,  6  M.  &'G,  861 ;  Goodman 
V.  Grieraon,  2  Ball  &  B  274;  Fhigg  y.  Mann, 
2  Sumu.  534;  Wharf  v.  Howell,  5  Binn.  499  ; 


Scott  V.  Field."?,  7  Watts,  3G0;  Elder  v.  Rouse, 
15  Wend.  218;  Hone  v.  Fisher,  2  Barl).  Cha. 
559;  Hall  V.  Byrne,  1  Seam.  140;  2  Greeul. 
Cruise,  83  n.  ;  New  Orleans,  &c.  v  Ilogaii,  1 
La.  Ann.  R.  G2  ;  Yates  v  Aston,  4  Ad.  &  Ell. 
N.  182;  Griimell  v.  Baxter,  17  Pick.  386; 
Bacon  V.  Brown,  19  Conn.  29;  Lawranco  v. 
Boston,  8  Eng.  L.  &  Equ.  494. 


Sellers  v.  Stalcup,  7  Ired.  Equ.  13;  Allen  v.  McRae,  4  Ired.  Kqu.  325;  Elliott  v.  Ma.\well, 
7,  246;   Kemp  v.  Karp,  lb.  1G7. 

I      In  Maryland,  Watkins  v.  .Stockett,  6  liar.  &  J.  435  ;  Bend  v.  Sasquebannah,  &o.,  lb.  128; 
Bank,  .Ve.  v.  Wliylo.  1  Md   Clia.  536. 

Ill  T'^iinesseo,  Brjwn  v.  Wriglit,  4  Yerg.  57  ;  Perry  v.  Pearsog,  1  Humpli.  431. 

In  Arkansas,  Blakeniore  v.  Byrnside,  2  I'jig.  505. 

In  lliinoi!<,  Hovey  v.  IIiilcDinl),  11  lllin.  GOO;   Coates  v.  "Woodwortb,  13,  G54. 

In  Missouri.  Ilogel  v.  Lindell,  10  Mis.  483. 

In  Alabama,  May  v.  Eastin,  2  Port.  414. 

In  .Slissiissippi,  Watson  T.  Dickens,  12  Sm.  k  M.  608;   Prcwett  v.  Dobbs,  13,  431. 

In  Texas,  Stamper  v.  Johnson,  3  Tex.  1. 

In  Indiana,  Conwell  v.  Evill,  4  Blackf.  67. 

In  Kentucicy,  Tliomas  v.  McCormack,  9  Dana,  108. 

In  Ohio,  Mii.mi,  Ac.  v.  Bank,  Ac.  Wright,  249. 

In  the  courts  of  the  United  Stales,  Morris  v.  Nixon,  1  How.  127  ;  Bentley  v.  Phelp.s,  2 
Woodb.  k  Min.  426;   Bank,  kc.  v.  Sprigg,  1  McL.  133  ;  Ciiickering  v.  Hatch,  3  Sumn.  474. 

(a)  In  Maryland,  a  mortgage  made  by  a  citizen   to  a  foreigner  for  the  loan  of  money  i 
valid,  and  binds  hiin  to  pay  it  without  any  express  covenant  or  agreement. 


898 


LIORTGAGE— NATURE, 


rCHAP.  XXIX. 


the  payment  of  money  or  some  other  act;  the  transacdon  is  a  mort- 
gage, whether  the  land  is  the  onlj  security  or  not.(l) 

23.  A  mortgage  being  intended  simply  for  security,  and  the  nature  of 
the  transaction  affording  opportunity  and  temptation  to  the  lender  to 
take  advantage  of  the  necessities  of  the  borrower  ;  the  right  of  redemp- 
tion is  held,  in  equity,  to  be  an  inseparable  incident  to  a  mortgage',  and 
all  restrictions  or  qualifications  of  this  right  are  deemed  utterly  void. 
The  maxim  is,  "once  a  mortgage,  always  a  mortgage."  Hence,  a  pro- 
viso, limiting  the  right  of  redemption  to  the  mortgagor  himself,  is  of  no 
effect,  and  his  heir  after  his  death  may  redeem.  So,  although  limited 
by  an  express  covenant  to  the  heirs  male  of  his  body,  a  jointress  or  as- 
signee claiming  under  him  may  redeem.  The  right  of  redemption  has 
been  said  to  be  as  inseparable  from  a  mortgage,  as  that  of  replevying 
from  a  distress.(2)(a). 

2-i.  A  condition,  that  if  the  mortgagee,  on  failure  of  the  mortgagor 
to  pay  the  money  at  the  time,  pay  him  a  further  sum,  the  former  shall 
become  absolute  owner,  is  void  ;  though  an  agreement  to  give  the  mort- 
gagee the  right  of  pre-emption,  in  case  of  a  sale,  has  been  assumed  to 
be  valid.  Chancellor  Kent,  however,  suggests  that  this  agreement,  like 
the  former,  would  be  void.  The  mortgagor  will  not  be  allowed  to  use 
the  incumbrance,  in  obtaining  the  equity  of  redemption  for  less  thau  its 
value. (8) 

25.  ilortgage  for  £200,  v/ith  a  bond,  conditioned  that  if  not  paid  at 
the  day,  and  if  the  mortgagee  should  then  pay  the  mortgagor  the  fur- 
ther sura  of  £78  in  full  for  the  purchase  of  the  land,  the  bond  should 


(1)  Coote,  50.  61 ;  Mellor  v.  Lees,  2  Atk. 
494;  Exton  v.  Greanes,  1  Tern.  138;  Con- 
way V.  Alexander,  7  Craneh,  237  ;  Morris  v. 
IsTixon,  1  How.  119  ;  Wilcox  v.  Morris,  1  Mnr. 
117;  Porter  v.  Nelson,  4  N".  H.  130;  Smith 
v.  People's,  &c.,  11  Shepl  185;  Kelly  v.  Beers, 
12  Mass.  388,389:  Lanlair  v.  Lanfair,  18 
Pick.  299  ;   Iliester  v.  Maderia,  3  W.  &  S.  384. 

(2)  Jason  v.  Eyres,  2  Cha.  Cas.  33 ;  Howard 
V.  Harris,  1  Tern.  33,  190;  Henry?).  Davis, 
7  Jolin.  Cha.  40;  Clark  v.  Henry,  2  Cow. 
324;  Holridge  v.  Gillespie,  2  John.  Cha.  30; 
Conway  v.  Alexander,  7  Craneh,  218  ;  Bowen 
v.  Edwards,  1  Kep.  in  Cha.  221;  2  Sumn. 
487  ;  Kunkle  v.  Woltersberger,  C  "Watts,  12(3 ; 
Jaques  v.  Weeks,  7  Watts,  261  ;  Wright  v. 


Bates,  13  Verm.  341 ;  Perkins  v.  Drye,  3  Dana, 
176;  Rankin  v-  Mortimore,  7  Watts,  372; 
W^aters  v.  Randall,  6  Met.  483;  Hiester  v. 
Maderia,  3  W.  &  S.  387  ;  May  v.  Ea-ston,  2 
Port.  414;  Spuro:eon  v.  Collier.  1  Ed.  59. 
Trea.  of  Equ.  lib  V.,  1.  c.  1,  see.  4 ;  Vernon  v. 
Bethell,  2  Kd.  113;  Clench  v.  Witherby,  Cas. 
Temp.  Finch,  376;  Sevier  v.  Greenwav,  19 
Ves.  412;  Caufman  v.  Sayre,  2  B.  Mon."  205. 
(3)  4  Kent,  142  ;  Holrid^e  v.  Gillespie,  2 
Jolin.  Cha.  34:  Hammonds  v.  Hopkin.s,  3 
Yero;.  525  ;  McKiiistrv  v.  CvoxAj,  12  Ala.  678  ; 
Hicks  V.  Hick.s,  5  Gill  &  J.  85  :  St.  Joim  v. 
Turner,  2  Vern.  418;  Vernon  i;.  Bethell,  2 
Ed.  110. 


(a)  But  the  rule  above  stated  does  not  appl}'  to  an  agreement  contained  in  the  mortgage,, 
that,  if  the  interest  shall  not  be  paid  when  due,  the  mortgagee  may  treat  the  mortgnge  as 
due,  and  sue  upon  it,  and^lso  have  a  claim  for  his  damages.  Such  agreement  will  be  en- 
forced, lluling  V.  Drexell,  7  Watts,  126.  The  unrestricted  right  of  redemption  extends  to 
transactions  between  the  parties  in  the  nature  of  security  for  the  debt,  subsequent  to  ike  ori- 
ginal mortgage.  So,  a  third  person  may  sometimes  have  an  unlimited  right  to  redeem,  though 
there  is  no  direct  mortgage  from  him  to  the  party  of  whom  redemption  is  claimed.  Tlius, 
■where  an  equitrible  owner  sold  his  title  and  received  part  of  the  price,  and  then,  witii  the  con- 
sent of  the  purchaser,  sold  to  anotlier,  on  condition  that  he  would  advance  tiie  balance,  and 
give  the  first  purchaser  a  certain  time  to  pay  it ;  upon  which  payment,  the  first  purchaser 
was  to  have  tlie  land,  otherwise  the  second  purchaser  should  have  it.  The  first  purchaser 
promised  to  pay  the  money  to  the  second,  and  soon  removed  from  tiie  land,  and  the  second 
purchaser  took  possession.  Held,  after  the  six  months,  not  having  paid  tlie  money,  tlie  first 
purchaser  might  still  redeem  the  land.  Bloodgood  v.  Zeily,  2  Caines'  Cas.  in  Er.  124;  Pen- 
nington v.  Hanbey,  4  Munf.  140. 


CHAP.  XXIX,]  FORif,  EFFECT,  ETC.  399 

be  void.     Tlic  .£200  not  being  paid,  and  the  mortgngce  having  paid 
the  £78;  lield,  the  infant  heir  of  the  mortgagor  might  redeem. (1) 

26.  A  mctgagee  may  eontraet,  subsequently  to  llie  mortgage,  for  a 
purchase  or  release  of  the  equity  of  redemption  ;  but  no  agreement 
for  a  henehcial  interest  from  the  estate  during  the  mortgage  is  vahd,  if 
disaflirmed  in  a  reasonable  time.(2)  _ 

27.  On  the  same  principle,  if  the  mortgagor  ngree,  'by  a  distinct 
contract,  to  pay  the  mortgagee  a  sum  over  and  above  the  debt,  interest 
and  cost,  such  contract  will  be  set  aside  as  uncon.«cionahle  ;  for  a  man 
shall  not  have  interest  for  his  money,  and  a  collateral  advantage  be- 
sides for  the  loan  of  it,  or  clog  the  redemption  with  any  bye  a"-reen)ent. 

28.  A  loaned  to  B  a  sum  of  money  on  mortgage,  and  at  the  same  time 
took  from  him  a  separate  covenant,  to  convey  to  A,  if  he  thought  tit, 
certain  ground-rents  of  the  same  value.  On  a  bill  lor  redenij)tion  by 
B,  held  he  might  redeem  by  paying  merely  the  sum  loaned,  with  in- 
terest and  cost.(3) 

29.  Equity  does  not  sanction  an  agreement  to  turn  interest  into  prin- 
cijial,  at  the  end  of  a  specified  period  ;  because  it  is  a  stipulation  lor  a 
collateral  udvantar/e,  and  tends  to  usury,  though  not  actually  usurious.(4) 

30.  But  an  agreement,  that  the  mortgagee  shall  have  the  u.se  of  the 
property,  instead  of  interest,  is  not  usurious,  unless  such  use  amounts 
to  more  than  legal  iDterest.(5) 

31.  An  agreement,  subsequent  to  the  making  of  the  mortgage,  be- 
tween any  party  interested  as  mortgagee,  and  the  mortgagor  or  his  as- 
signee, to  limit  the  right  of  redemption  to  any  particular  time,  will  not 
be  enforced. 

32.  A  mortgagee  filed  a  bill  in  equity,  for  foreclosure,  against  the 
jnortgagor  and  his  creditors,  having  an  interest  in  the  equity  of  redemp- 
tion, and  obtained  a  decree.  The  defendant,  one  of  the  creditors,  paid 
and  toi^k  an  assignment  of  the  mortgage,  and  agreed  Ayith  the  other 
creditors  that  they  might  redeem  within  a  certain  time.  The  defendant 
having  had  possession  twenty  years,  the  other  creditors  file  a  bill  for 
redemption.  Held,  the  other  creditors  stood  in  the  conditional  relation 
of  mortgagor,  to  the  defendant ;  and  as  the  decree  for  foreclosure  was 
not  assigned  to  him,  the  agreement  limiting  the  time  of  redempiion  was 
void,  and  they  might  redeem. (())(a) 

33.  A  mortgage  is  to  be  distinguished  from  a  sale  luilh  an  agreement 
to  repurchase.  The  latter  transaction,  though  narrowly  watched,  is 
construed  like  an  independent  agreement  between  strangers;  and  the 
seller  v,  ill  not  have  a  mortgagor's  right  to  redeem  after'the  ai)pointed 

(1)  W  HI.  It  r.  U  imKll,  1  Venn.  4S8.  ,  See  Coote.  511,  512:  Marquis,  &c  t-  Hi-cins 

(2)  4  Kent,    l-i.i  2  Vern.  134;   Burton  v.  Sli.llery,  5  B.  P.   c! 

(3)  Jo.u.mirat'.  Ward.  2  Voni.  520.  !  233  ;   Brown  v.  Barkluim     IP    Wm.s    65'' • 

(4)  (^liamhors  v.  Goldwiri,  9  Vez.  271  ;  |  Stanhope  w.  Manners  2  I'^l  199  ' 
Coote,  501.  602.  (6)  Kxton  v.  Greave.s,  1  Vern;  138. 

(0)  Jojner  v.  Vincent,   4  Dov.  .t  ]?.   512. 


(a)  A.  tenant  in  tail  of  a  reversion,  mortpaped  it.  B,  his  father,  joining.  A  nprced  that 
unless  he  paid  by  tne  day.  or  if  B  paid  the  debt,  B  .should  have  iho  propertr,  and  pive  A 
one-.sev.nth  B  h.ivinpr  died,  and  d.vi.<;ed  the  laud;  held,  A  still  liad  llie  right  of  redemp- 
tion.     Playford  V.  Playlbrd,  Holt,  K'qu.  310. 


400 


MORTGAGE— NATURE, 


[CHAP.  XXIX. 


day.     But  equity  Avill  always  construe  the  transaction  to  be  a  mortgage, 
if  possible.(l)(a) 

34.  Where  there  is  an  agreement  for  repurchase  within  a  certain 
time,  by  the  mortgagor,  of  the  estate  mortgaged,  and  such  agreement 
is  made,  not  at  the  giving  of  the  mortgage,  but  afterwards ;  the  right 
of  redemption  or  repurchase  may  be  restricted  to  the  time  stipulated. 

85.  A,  being  a  joint  tenant  with  B,  made  a  conveyance  to  C  for 
£104,  absolute  in  form,  but  admitted  to  be  in  reality  a  mortgage.  This 
deed  was  cancelled,  and  another  similar  one  made  for  a  larger  conside- 
ration, including  the  £104,  and  covenanting  that  A  would  not  make 
partition  without  C's  consent.  The  receipts  for  the  money  spoke  of  it 
as  purchase-money.  Two  years  after  the  last  deed,  it  was  agreed  that 
A  should  regain  the  land,  on  payment  of  principal,  interest  and  costs. 
B  being  in  possession,  C  recovered  the  land  in  ejectment,  and  occupied 
sixteen  years.  A  brings  a  bill  to  redeem.  Held,  though  the  covenant 
against  partition  showed  that  A  was  siill  supposed  to  retain  an  interest 
in  the  lan<l,  and  though  the  first  deed  was  allowed  to  be  a  mortgage, 
yet  the  case,  on  the  whole,  was  one  of  a  subsequent  agreement  for  re- 
purchase, and,  after  the  lapse  of  so  long  a  time,  a  redemption  should 
not  be  allowed. (2) 

86.  So,  where  a  mortgagee,  having  recovered  the  land  for  breach  of 
condition^  for  an  additional  advance  of  money  obtains  a  release  of  the 
equity  from  the  mortgagor,  at  the  same  time  giving  him  a  promise  to 
sell  and  conve}^,  on  payment  of  the  whole  money  advanced  within  a 
certain  time ;  after  this  time  has  elapsed,  the  estate  becomes  absolute 
in  the  mortgagee ;  the  last  transaction  being  regarded  as  an  original 
contract  to  convey  the  estate  upon  certain  terms.  In  this  case,  how- 
ever, sixteen  years  had  elapsed. (8) 

87.  Where  a  mortgage  is  made  to  or  for  a  relation  or  a  wife  ;  in  con- 
formity with  the  presumed  intention  of  the  mortgagor,  to  make  the 
conveyance  beneficial  to  the  mortgagee,  the  right  of  redemption  will  be 
limited  strictly  to  the  time  specified.  In  case  of  a  marriage  settlement, 
an  omission  to  perform  the  condition  will  be  construed  as  an  election 
to  let  the  settlement  stand,  and  no  redemption  will  be  allowed,  espe- 
cially after  the  mortgagor's  death,  and  against  a  purchaser  without  no- 
tice from  the  wife.(4) 

8'S.  Thus,  where  A  conveyed  to  B,  to  whom  he  vras  related  by  mar- 
riage, by  an  absolute  deed,  and  took  back  another  deed,  making  the 
land  redeemable  during  A's  life ;  held,  in  reversal  of  Lord  Notting- 
ham's decree,  that  the  heir  of  A  could  not  redeem. (5) 


(1)  4  Kent,  143-4;  Davis  v.  Thomas,  1 
Russ.  &  M.  506  ;  Poindexter  v.  McCannon,  1 
Dev.  Eq.   373. 

(2)  C(Jtterell  v.  Purchase,  Ca.  Temp.  Tal. 
61;  Wrixon  v.  Cotter,  1  Ridge,  295;  Aubtin 
V.  Bradley.  2  Day,  4GG;  2  N.  Y.  Rev.  Sts. 
546 ;  Waters  v.  Randall,  6  Met.  484 ;  Per- 
kins V.  Drye,  3  Dana,  177  ;  Russell  v.  South- 
ard, 12  How.  139;  Cameron  v.  Irwin,  5  Hill, 


280;  Trull  V.  Skinner,  17  Pick.  213;  Harri- 
son V.  Phillips,  &c.,  12  Mass.  465;  Marshall 
V.  Stewart,  17  Ohio,  351. 

(3)  Endsworth  v.  Griffith,  2  Abr.  Eq.  695 ; 
5  Bro.  Pari.  184. 

(4)  King  V.  Bromley,  2  Abr.  Eq.  695. 

(5)  Bonham  v.  Newcomb,  2  Yent.  364;  1 
Abr.  Equ.  312.  See  Trull  v.  Owen,  4  Y.  & 
Coll.  492. 


(a)  Conveyance  in  consideration  of  a  certain  sum,  with  a  written  but  unsealed  agreement 
by  the  grantee  to  reconvey,  upon  repayment  of  the  sum  within  a  certain  time.  Held,  an 
equitable  mortgage,  not  a  sale  with  conditional  right  to  repurchase.  Eaton  v.  Green,  22 
Pick  526. 


CHAP.  XXIX.]  FORM,  EFFKCT,  ETC.  401 

39.  A  granted  a  rent-charge  of  £48  per  annum  to  B  in  fee,  on  con- 
dition, that  if  A  should  at  any  time,  aftei;  notice,  pay  in  the  purchase- 
monev  by  certain  instahncnts,  Avitli  intiTcst,  during  his  lifo,  the  grant 
should  be  void.  The  rent-charge  fell  .short  of  the  interest,  and  there  was 
no  covenant  to  pay  the  money.  After  A's  death,  li  conveyed  t:)  C 
with  warranty,  and  C  to  D.  Sixty  years  having  clai)sed ;  upon  a  bill 
for  redemption,  held,  the  circumstances  of  the  case  shavccd  "that  the 
mortgagee  had  parted  with  a  fair  equivalent  for  purchasing  the  right 
of  redemption  after  A's  death,  and  the  lapse  of  time  made  the  case  still 
stronger  against  the  bill,  which  was  accordingly  dismissed.(r) 

40.  A  mortgages  an  estate  to  B,  and  B  to  C,  for  £200,  A  and  his 
son  D  joining  in  the  latter  mortgnge.  To  secure  payment  of  the  inter- 
est, (J  leases  to  the  son  of  A  for  5,000  years,  at  the  rent  of  £12  i)er 
annum,  for  the  lirst  three  years,  and  the  rest  of  the  term  £10;  .'md,  if 
the  £200  and  interest  were  not  paid  in  three  years,  the  land  to  be  re- 
conveyed.  Keceipts  were  given,  sometimes  as  for  interest,  and  some- 
times for  a  rent-charge.  The  last  receipt  was  about  forty  years  subse- 
quent to  the  lease.  Ten  years  after  this  receipt,  a  bill  Avas  brought  for 
redemption  by  the  grandson  of  A,  the  estate  having  nearly  doubled  in 
vnlue  since  the  mortgage.     Ileld,  it  would  not  ]ie.(l!) 

41.  A  having  received  a  patent  from  the  crown  lor  land  for  a  term 
of  years,  at  a  certain  rent,  a  subsequent  patent,  not  noticing  the  former, 
was  made  to  B.  The  former  term  having  nearly  fifty  years  to  run, 
and  being  worth  £200  per  annum,  B,  in  con.sideration  of  £200,  by 
lease  and  release,  conveys  to  A,  with  the  condition,  that  upon  repay- 
ment, within  five  years, 'ho  might  re-enter;  but,  on  failure  of  payment 
at  the  time,  the  estate  of  A  should  be  absolute  and  indefeasible,  both 
in  equity  and  law,  and  B  forever  debarred  from  all  right  and  relief  in 
equity.  And  B  hereby  released  forever  his  right  to  redeem,  on  failure 
as  aforesaid.  There  was  no  covenant  for  payment  of  the  £200.  The 
five  years  having  expired,  A  brings  a  bill  in  equity  for  foreclosure,  to 
which  B  never  put  iu  any  answer  or  defence,  and  a  decree  was  made 
that  B  should  be  foreclosed,  unless  the  money  were  paid  upon  a  certain 
day.  More  than  tliirty  years  afterwards,  the  lands  having  risen  in 
value,  tlie  heirs  of  B  bring  a  bill  in  equity  against  the  heirs  of  A,  alle- 
ging surprise  and  imjiosition  in  obtaining  the  decree,  and  praying  re- 
dem[)lion.  The  plaintills  prevailed,  but  the  decree  was  reversed  in  the 
Ilouse  of  Lords.  The  grounds  of  argument  for  the  defendants  were, 
the  terms  of  the  conveyance  from  B  to  A,  waiving  all  right  of  redemp- 
tion ;  the  reversionary  character  of  B's  estate,  yielding  no  present  pro- 
fit, au'l  worth  at  the  time  not  more  than  £200;  and  the  want  oi^  any 
covenant  to  pay  the  money,  and  consequeutly  of  any  mutuality  in  the 
transaction,  which  is  essential  to  constitute  a  mortgage.(3) 

42.  The  distinction  between  a  mortgage  and  a  conditional  sale  is 
said  to  be,  that  if  a  dtll  remains,  the  transaction  is  a  mortgage,  but  if 
the  debt  is  extinguished  by  mutual  agreement,  or  the  money  adyanced 
is  not  loaned,  but  the  grantor  has  a  right  to  refund  in  a  given  time,  and 
have  a  reconveyance;  this  is  a  conditional  sale.  The  true  inquiry  is, 
whether  the  purpose  of  the  parties  was  to  treat  of  a  purchase,  the  value 
of  the  commodity  contemplated,  and  the  price  fixed.     And  the  point 

(1)  Floyer  y.Lavington,  1  P.  "Wms.  208.       I      (.3)  Tasburgh  v.  Eclilin,   2   Bro.  Pari.  Cas. 

(2)  Mellor  v.  Lees,  2  Alk.  494.  |  265. 

Vol.  I.  26 


402 


MORTGAGE— NATUl^, 


[CHAP.  XXIX. 


is  to  be  settled  by  tlie  ichole  transaction,  not  merely  the  written  evidence. 
Parol  evidence  is  received,  nQj,  to  explain  or  construe  the  writings,  but 
to  show  the  true  character  of  the  contract.  Various  and  minute  cir- 
cumstances are  to  be  taken  into  view.  If  a  fair  price  is  advanced,  the 
property  liable  to  injury,  such  as  requires  frequent  repairs,  and  of 
fluctuating  fashion  and  profits;  or  if  the  purchaser,  though  not  put 
into  actual  possession,  leases  to  the  grantor,  and  receives  the  rents,  &c., 
without  accounting,  and  the  grantor's  wife  releases  her  dower;  and  if 
the  estate  consists'of  a  large  building,  which  is  subject  to  fire,  and  at 
the  grantee's  lisk,  and  he  has  no  power  to  enforce  his  claim  against  the 
grantor,  there  being  no  covenant  or  promise  by  the  latter,  while  he  at 
the  same  time  has  the  right  of  re-purchasing  within  a  given  time:  all 
these  facts  go  to  show  a  conditional  sale.(l)  The  want  of  any  personal 
obligation  against  the  grantor,  though  not  conclusive,  is  very  strong 
evidence  of  a  conditional  sale  ;  for  a  mortfjagee  must  have  a  remedy, 
express  or  implied,  against  the  jjerson  of  the  debtor.  But  Chancery  will 
always  lean  in  favor  of  a  mortgage.(2)(o) 

48.  The  same  general  principle,  of  not  restricting  the  right  of  redemp- 
tion, has  been  applied  to  the  case  of  a  lease  from  mortgagor  to  mortgagee, 
which  is  in  the  nature  of  a  partial  surrender  of  the  equity  of  redemp- 
tion. So,  also,  to  a  lease  from  mortgagee  to  mortgagor,  accompanied 
by  a  covenant  to  reconvey  the  premises  to  the  mortgagor,  upon  payment 
of  a  certain  sum  by  a  specified  time  ;  in  which  case,  a  redemption  will  be 
decreed,  even  against  a  purchaser  from  the  moitgagee,  with  notice.(3) 

44.  The  rule  above  stated,  as  to  the  right  of  redemption,  and  the  dis- 
tinction between  a  mortgage  and  a  conditional  sale,  has  been  applied  to 
the  conditional  assignment  of  a  mortgage  itself. 

45.  A  assigns  a  mortgage  to  B,  upon  condition,  that  if  certain  ex- 
pected receipts  shall  amount  to  $800,  B  shall  re-assign,  and  account  for 
the  surplus  over  that  sum  ;  if  they  shall  not  amount  to  that  sum,  and 


(1)  Sleo  v.  Manhattan,  &c,,  1  Paige,  56; 
Goodman  v.  Grierson,  2  Ball  &  B.  274;  Ro- 
binson V.  Cropsej^  2  Elw.  138;  Robertsons. 
Campbell,  2  Call,  354;  Chapman  v.  Turner, 
1,  244;  Sevier  i;.  Gn-enway,  19  Ves.  413: 
Hieks  V.  Hicks,  5  Gill  &  J.  82  ;  Bennet  v. 
Holt,  2  Yer^.  6  ;  Hickman  v.  Quinn,  6,  96  : 
Hannah,  &c..  Bland,  225-6;  Davis  v.  Thomas, 
1  Russ.  &  M.  506 ;   2  Sumn.  487. 

(2^  Conway  v.  Alexander,  7  Cranch,  237  ; 
Menude  i;.  Delaire,  2  Des.  564;  Baxter  t;. 
Willey,  9  Verm.  276;  Holmes  v.  Grant,  8 
PaiL^e,  243 ;  Chambers  v.  Hise,  2  Dev.  &  B. 
Equ.  375;  Glover  v.  Payn,  19  Wend.  518; 


Bacon  f.  Brown,  19  Conn.  29;  Douijherty  v. 
McColgan,  6  G.  &  John.  275 ;  Russell  v. 
Southard,  12  How.  139;  Gait  v.  Jackson,  9 
Geo.  151;  Gailher  v.  Teague,  1  Ired.  460; 
Page  V.  Foster,  7  N.  H.  392  ;  Yerner  v  "Win- 
statiley,  2  Sch.  &  L.  393;  Perry  v.  Meddow- 
croft,  4  Beav.  197  ;  Williams  v.  Owen,  10 
Sim.  386;  Baker  v.  Tlirasher,  4  Denio,  493. 
(3)  Guhbinsv.  Creed,  2  Sch.  &  Lef.  214; 
"Wright  V.  Bates,  13  Verm.  341  See  Sleet). 
Manhattan,  &c.,  1  Paige,  48;  Fuller  v.  Hodg- 
don.  25  Maine.  243  ;  Holridge  v.  Giilespie, 
2  John.  Cha.  30  ;  Miami,  &c.  v.  Bank,  &C., 
Wright,  249. 


(a)  It  has  been  held,  that  parol  evidence,  though  admissible  to  prove  an  absolute  deed  a 
mortgage,  is  not  adniissii.le  to  prove  a  Ibrmal  mortjrage  to  be  a  conditional  sale;  that,  in  the 
one  ('ase,'the  proof  raises  an  equity  consistent  with  tiie  writing,  and  in  the  ot'.ier  would 
contradict  it.     Kunkle  v.  Wolf'ersherger,  6  Watts,  130. 

Bo.  oil  the  other  hand,  it  has  been  said,  tliatiii  examining  transactions  between  borrowers 
and  ieiider.s,  courts  of  equity,  aware  of  the  unequal  relation  of  the  parties,  are  particularly 
attentive  to' any  oircunistarices  tending  to  show  an  inconsistency  between  the  form  of  an 
act  and  the  intent  of  the  parties,  and  will  lake  great  pains,  when  their  suspicion  is  thus 
excited,  to  get  at  the  substance  of  what  was  done  or  intended.  But  it  is  a  conclusion  of 
reason,  'andl,heref.>re  inii.st  be  the  presumption  of  every  court,  that  solemn  instruments  declare 
the  truth,  until  error,  mistake,  or  imposition  be  shown.   McDonald  v.  McLeod,  1  Ired.  Equ.  226. 


CHAP.  XXIX.] 


FORM,  EFFECT,  ETC. 


403 


unless  A  in  one  week  pay  the  tleficiency,  the  mortqaf^o  to  be  considered 
as  ah.soh.itely  assigned.  The  reeeipts  liavini.,'  fallen  short  of  $300,  licdd, 
this  was  a  mortgage  or  pledge,  not  a  conditional  sale,  and  that  A  should 
have  relief  iu  equity,  on  making  uj)  the  $300.(1) 

40.  A  power  may  be  given  to  a  mortgagee,  in  case  of  non-pay  ment 
at  the  time,  to  sell  the  estale.{a)  lie  may  pass  a  title  without  tli,e  mortga- 
gor's joining  in  the  deed;  and  the  hitter  will  be  divested -of  all  right  and 
interest,  and,  if  in  possession,  become  a  mere  tenant  at  sulferanoe. 
Such  power  passes  to  an  assignee  of  the  mortgage.(2) 

47.  Such  power  having  been  inserted  in  a  deed  of  defeasance,  the 
proceeds  to  be  first  applied  to  the  debt,  and  the  surplus  paid  to  the 
mortgagor,  the  mortgagee,  on  faihire  of  payment,  agreed  with  a  third 
person  to  convey  the  land  to  him.  The  court  decided,  that  this  agree- 
ment was  not  equivalent  to  an  actual  sale,  but  seemed  to  take  it  for 
granted,  that  "uch  conveyance  would  be  effectual  to  pass  the  estate.(3) 

48.  In  a  similar  case,  the  land  having  been  sold  at  auction,  the  pur- 
chaser required  the  concurrence  of  the  mortgagor,  who  refused  to  join, 
alleging  tliat  the  sale  was  made  at  a  sacrifice,  and  without  his  consent. 
The  purchaser  then  brings  a  bill  against  the  mortgagee  and  mortgagor, 
wliieh  was  sustained  against  the  former,  but  dismissed  as  to  the  lat- 
ter.(4) 

49.  Lord  Eldon  considered  the  power  in  question  as  a  dangerous  and 
extraordinary  one,  and  of  modern  introduction,  and  thought  it  should 
be  vested  in  some  third  person  as,a  trustee  for  both  parties.  But  Chan- 
cellor Kent  remarks,  that  the  mortgagee  himself,  under  such  power,  be- 
comes a  trustee  for  the  surplus  ;  and  that  unless  due  notice  be  given  of 
a  sale,  equity  will  set  it  aside.(5) 

51.  It  is  said,  the  only  doubt  as  to  the  validity  of  such  power  seems 
to  be,  as  it  aflfects  the  rights  of  subsequent  mortgagees.(6) 

52.  In  Maryland,  by  statute,  real  estate  mortgaged  in  the  city  of 
Baltimore  may  be  sold  under  such  power.(7)  The  validity  of  a  power 
to  sell  is  also  recognized  in  other  States. 

53.  If,  upon  a  sale  under  a  power,  the  mortgagee  himself  purchases, 
the  sale  is  voidable  iu  equity,  by  the  mortgagor,  (or  good  grounds, 
though  not  aixsolutely  void.  In  New  York  and  Michigan,  the  mortga- 
irce  is  authorized  to  purchase,  if  it  be  done  fairly  ;  and,  in  New  York, 
the  allidavit  of  sale,  without  deed,  will  perfect  his  title.  In  the  same 
State,  the  power,  to  be  effectual,  must  be  registered  or  recorded,  and 

(1)  Solomon  v.  Wilson,  1  Wliart.  241. 

(2)  Corder  v.  Morgan,   18  Ves.  344.     See 
Kinsley  i'.  Ames,  2  Met.  29;  Ilob.son  v.  Bell, 

2  Heav.  17  ;  Gorson  v.  Bliikey,  6  Misso.  2":^: 
Cnmeron  v.  Irwin.  5  Hill,  272  ;  Holden  v.  Gil- 
bert, 7  Paifjo,  208  ;  Gites  v.  Jacol),  1  B.  Monr. 
307 ;  Dob.son  v.  Racey,  3  Sandf.  Clia.  GO ; 
Stu'iback  V.  Loat,  Coop.  4G  ;  Curling  v. 
Shuttlfwortli,  6  Bing.  121;   Green  r.  Tanner, 

3  Melt.  423 ;  Clay  v.  Willis,  1  B.  &  C,  3G4 ; 
Destrehan  v.  Scudder,  11  Missi.ssippi,  484; 
Loiigwitli  V.  Butler,  3  Gilni.  32;  Sanders  v. 
Richards,    2    ColL    568;   Hobson   v.  Boll,    2 


Beav.  17;  Hyndman  v.  Hyndman,  19  Verm. 
9  ;  Major  v.  Ward,  5  Hare,  598;  Wright  v. 
Rose,  2  Sim.  &  St.  323  ;  Moses  v.  Murgatroyd, 
!  Jolui.  Cha,  119;  Coutantv.  Servoss,  3  Barb. 
128;  Jeii(*8V.  Alexander,  11  Paige,  619. 

(3)  Crolt  V.  Powell,  2  Com.  R.  603. 

(4)  Clay  V.  Sharp,  2  Cruise,  95;  Sug.  oa 
Vend.  Gth  ed.  App.  14 

(5)  Roberts  c.  Uozon,  (Feb  1825,)  4  Kent 
U6.  See  Brisbane  v.  Stoughtoa,  17  Ohio, 
482. 

(6)  Walk.  Intro.  306.* 

(7)  Md.  St.  183G,-7,  ch.  249. 


(a)  By  the  civil  law,  tho  mortgajfee  has  this  power  by  implication,  and  even  on  express 
agreement  will  not  deprive  him  of  it.  1  Dom.  3C0.  It  is  said  to  bo  invalid  in  Virginia.  4 
Kent,  148.  n. 


404 


MORTGAGE— WHA.T  ESTATE 


[CHAP.  XXX. 


the  sale  is  made  equivalent  to  a  foreclosure,  as  against  the  mortgagor 
and  all  claiming  by  title  subsequent  to  the  mortgage.  Similar  provi- 
sions in  j^Iaryland  and  Maine.  (See  Powers.)  In  Michigan,  the  mort- 
gagee cannot  sell,  if  he  has  previously  commenced  a  suit,  which  is  pend- 
ing.    In  Mississippi,  without  six  months'  notice.(l) 

54.  It  has  been  held  in  Massachusetts,  that  the  giving  of  a  power  to 
sell,  in  an  instrument  which  would  otherwise  be  a  mortgage,  does  not 
change  the  character  of  the  mortgagee's  estate.  For,  although  he  may 
pass  an  absolute  title  to  a  third  person,  by  executing  the  power,  yet,  until 
it  is  executed,  he,  himself,  has  only  a,,  conditional  title.  And  even  a  pur- 
chaser will  not  take  an  absolute  estate,  it  seems,  if  he  has  notice  of  the 
original  nature  of  the  transaction,  and  purchases  with  some  reference  to 
the  conditional  character  of  the  title. (2) 


CHAPTER  XXX. 

MORTGAGE— WHAT  ESTATE  IT  CREATES  IN  THE  MORTGAGOR  AND  THE 

MORTGAGEE. 


1.  Estate  remains  in  the  mortgagor,  as  to 
third  persons,  but  not  as  to  the  mort- 
gagee. 

5.  Mortgagee  may  take  possession,  when. 

8.  Agreement  for  mortgagor's  possession. 
16.  Mortgagor  in  possession,  nature  of  his 
estate — tenancy  at  will,  <fec. 


17.  Cannot  commit  waste,  but  not  bound 

to  repair. 

18.  Lease  by  mortgagor  before  or  after  tlie 

mortgage  ;    rights  of  tiie  lessee  and 
mortgagee. 

34.  "Waste  by  mortgagee. 

35.  Lease  by  mortgagee. 


1.  Although  a  mortgage,  in  form,  purports  to  convey  a  present 
estate  to  the  mortgagee,  liable  to  be  defeated  by  performance  of  the 
condition  named  ;  yet  the  well-settled  modern  doctrine  is,  that,  not- 
withstanding the  convej^ance,  the  mortgagor,  not  only  in  equit}'  but 
at  law,  remains  ow-ner  of  the  land,  till  some  further  act  is  done  to  vest 
it  in  the  mortgagee.  In  other  words,  although  the  condition  of  a  mort- 
gage is  in  form  subsequent,  operating  to  devest  an  interest  once  vested; 
yet  it  is  in  substance  and  practice  precedent,  operating  to  vest  an  estate 
which  previously  remained  in  the  mortgagor.  The  language  of  the 
transaction  is,  that  A  conveys  to  B,  reserving  the  right  to  take  back 
the  estate  on  doing  a  certain  act ;  while  the  effect  of  it  is,  that  A  trans- 
fers to  B  a  mere  claim  or  lien  upon  the  land,  with  the  right  of  gaining 
the  land  itself,  upon  A's  failing  to  perform  such  act. 

2.  Several  considerations  seem  to  show,  that  this  is  the  true  view  of 
the  relation  between  mortgagor  and  mortgagee.  The  mortgagor  is  a 
freeholder  in  respect  to  the  estate  mortgaged.  This  estate,  in  his  hands, 
is  regarded  as  real  property,  and  as  such  must  be  inherited,  conveyed, 


(1)  Munroe  v.  Allaire,  2  Caines'  Casein  £r. 
19;  Davoue  v.  Fanning,  2  John.  Cha.  252:* 
Slee  V.  Manliattan  Co  ,  1  Paige,  48  ;  2  N.  Y. 
Rev.  St.  546;  4  Kent.  147;  Me.  St.  1838, 
ch.  333;  N.  Y.  Slat.  1842,  ch.  277,  sec.  8; 
Miss.  Rev.  St.  499;  Miss.  St.  1840,  28,  9; 


Middlesex,  &c.  v.  Minot,  4  Met.  325;  King  t'. 
Duntz,  11  Barb.   191. 

(2)  Eaton  v.  Whiting,  3  Pick.  484.  This 
caSe  seems  to  recognize  the  validity  of  the 
power  in  question  ;  though  tlie  conveyance 
was  here  expressly  in  trust  to  sell,  and  the 
condition  contained  in  a  subsequent  clause. 


*  These  were  cases  of  trust. 


CHAP.  XXX.] 


IT  CREATES,  ETC. 


405 


leased,  devised,  or  taken  14)011  legal  process ;  while  the  mortgagee's 
interest,  on  the  other  hand,  is  merel}'  personal,  as  will  be  more  I'ullj 
explained  hereafter.  The  mortgagor  may  maintain  an  ejectment  or 
re;il  action  for  the  land,  to  which  the  mortgage  cannot  be  set  up  as  a 
defence.  A  mortgage  is  not  an  alienation  or  sale  of  the  land  in  a 
technical  sense;  as,  for  instance,  for  the  purjiose  of  revoking  a  devise 
or  forfeiting  the  rights  of  a  party  insured,  or  violating  auijbligation  not 
to  seW,  without  first  offering  the  land  to  the  obligee.  So,  it  has  been 
held,  on  the  other  hand,  that  a  power  to  sell  does  not  involve  a  power 
to  morlgiige.  So,  a  mortgagor  gains  a  settlement  as  owner,  is  required 
or  enliiled  to  serve  as.  juror  or  member  of  the  legislature,  or  may  be 
received  as  bail.(l)(«) 

3.  Lord  Mansfield  said,  "it  is  an  affront  to  common  sense  to  say 
that  the  mortgagor  is  not  the  owner  of  the  land."(2)(/>)  In  South  Caro- 
lina, a  statute  expressly  declares  him  to  be  such. (3)  There,  (as  in  New 
York,)  even  after  condition  broken,  or  after  the  time  stipulated  for. 
redemption  is  past,  the  mortgagee  can  maintain  no  possessory  action, 
but  is  limited  to  his  statutory  remedy  ;  and  the  right  to  redeem  is  a 
legal  right,  not  a  mere  equity. 

4.  It  will  be  at  once  perceived,  however,  that  all  the  ])articulars 
above  named  have  reference  to  the  relation  which  a  mortgagor  sustains 
to  tliird  persons.  A  mortgage  being  merely  security  for  a  debt,  there 
would  be  little  propriety  in  attributing  to  it  the  effect  of  passing  away 
the  estate  from  the  former  owner,  except  so  far  as  is  reqyisite  to  effect 


(1)  Jackson  v.  "Willard,  4  John.  41  ;  Tlun- 
fmRlon  V.  Smilli,  4  Conn.  235;  Willinprton  v. 
Gale.  7  Mass.  138;  M'Call  v.  Lenox.  9  S.  & 
U.  302;  Ford  v.  Pliilpot.  5  liar.  &  J.  312; 
Wilson  V.  Troup,  2  Cow.  195;  Blaiie}'  v. 
Bearce,  2  Greenl.  132;  Aator  v.  Miller,  2 
Paiifc,  68  ;  Miami,  &c.  v.  Bank,  &c.,  Wright, 
249;  Den  v.  Dimon,  5  Ilalst.  156-7;  Wins- 
low  V.  Mercliants,  kc,  4  Met.  310;  Clark  v. 
Beacii,  6  Conn.  142;  Wiikins  v.  French,  20 
Maine,  111 ;  Cooper  v.  Davis,  15  Conn.  55G  ; 
Do(-  I'.  McLoskev.  1  Alab.  (N.  S.)  708  ;  Doe  v. 

Goldwin,  2  Ad.'&  El.  (N.  S.)  143;  v. 

Day.  lb.  147;  Ewer  v.  Hobbs,  5  Met.  3; 
Glass  V.  Ellison,  9  N.  IT.  69  ;  Smith  v.  Moore, 
11,  55;  Ellison  v.  Daniels,  lb.  274;  Perkins 
V.  Dibble,  10  Ohio,  438;  Ralston  v.  Huirhes, 
13  Illin.  469  ;  Meacham  v.  Fitolibur^r,  &c.,  4 
Gush.  291  ;  Davis  v.  Anderson,  1  Ktlly,  176; 
Muyo  V.  FK-tcher,  14  Pick.    531;  Heath  v. 


■Williams,  25  Maine.  209 ;  Howard  v.  Robin- 
son, 5  Cush.  123;  Wilson,  2  Ves.  &  B.  252  ; 
Cholmondeley  V.  Clinton.  2  Jac.  &  W.  183; 
Great  Falls.  &c.  v.  Worster,  15  N.  H.  412; 
Thorne  v.  Thorne,  1  Vern.  141-182;  Hall  v. 
Denoh,  1  Yern.  329;  Loveriiiji  v.  Fofrp,  18 
Pick,  540;  McTagsart  v.  Thompson,  2  llarr. 
149:  Neilson  «.  Lapow,  12  How.  98;  Albany 
&c.  V.  Bay,  4  Comst.  9;  Conover  v.  The  Mu- 
tual, &c,  3  Denio,  254;  Howard  v.  Robinson, 
5  Cu.sh.  119;  The  King  v.  St  Michael's,  &c., 
Dougl.  G32  ;  Rex  v.  Mattinffley,  2  T.  R.  12  ; 

V.  Chailey,  6  T.  R.  755  ;  Montgomery 

V.  Bruere,  1  South,  267;  1  Pow.  170  a; 
Beamish  v.  The  Overseers,  Ac,  7  Eng.  L.  & 
Equ  485. 

(2 1  Rex  V.  St.  Michaels,  Doug.  632. 

(3)  1  Brev.  Dig.  175;  State  v.  Laval,  4 
M'Cord,  340. 


(a)  A  mortgagee,  before  taking  po.ssession,  is  not  so  far  an  owner,  as  to  bee  ntitled  to 
notice  of  the  proposed  laying  out  of  a  road  over  the  land,  or  to  damages.  Parish  v.  Gil- 
manton,  11  N.  H.  293.     See  Wright  v.  Tukey,  3  Cush.  290. 

(/')  In  New  Hampshire,  the  old  and  literal  construction  of  a  mortgage  seems  to  be,  at 
least  in  theory,  substantially  retained.  It  is  there  said,  that  the  mortgagor  retains  only  a 
poiuer  to  reijnin  the  fte,  and  tliat  the  condition  a-s  to  him  (not  as  to  the  mortgagee,)  is  a  pre- 
cedent one,  ho  being  a  mere  tenant  at  sullVrance,  and  having  no  right  of  possession. 
Brown  v.  Cram,  1  N.  II.  171.  See  also  Haven  v.  Low,  4  N.  H.  16;  Chaml)orlain  v.  Thomp- 
son, 10  Conn.  243;  1  Pow.  107,  n. ;  Montgomery  v.  Bruere,  1  South.  268;  Heighway  v. 
Pendleton,  15  Ohio,  735;  Jamieson  v.  Bruce,  6  Gill  i  J.  74;  Goodwin  v.  Stephenson,  11 
B.  Mon.  21  ;  (deciding  that  a  mortgagor  cannot  sue  upon  the  covenants  in  the  deed  to  him 
of  the  land  mortgaged,  the  mortgagee  being  legal  owner.)  Gambril  v.  Doe,  8  Blackf.  140 ; 
Meyer  v.  Campbell,  12  Mis.  603  ;  (holding  that  a  mortgagor  cannot  recover  in  ejectment.) 


406 


MORTGAGE— WHAT  ESTATE 


[CHAP.  XXX 


the  object  of  the  transaction.  But  to  this  extent,  or,  in  other  words, 
as  between  the  mortgagor  and  the  mortgagee,  for  the  purpose  of  ren- 
dering avaihxble  the  security  given  ;  a  different  rule  prevails,  and  the 
mortgagee  has  all  or  most  of  the  rights  of  a  legal  owner. 

5.  A,  by  consent  of  B,  a  mortgagor  in  possession,  built  a  house  upon 
the  land.  The  house  was  sold  on  execution  as  A's,  and  C,  the  pur- 
chaser, brings  a  suit  for  it  against  D,  who  claimed  under  a  purchase 
from  B.  Held,  the  mortgagee  having  a  mere  lien  on  the  property,  if 
any  interest  in  it,  D  could  not  defend  on  the  ground  that  the  mortga- 
gee did  not  consent  to  the  erection  of  the  house,  and  forbade  its 
removal ;  that  the  rights  of  the  latter  would  not  be  affected  by  the 
event  of  this  suit,  and  the  house  would  remain  subject,  as  before,  to 
his  claim.(l)  It  was  intimated  by  the  court,  that  the.  mortgagee  ac- 
quired no  lien  upon  a  house  thus  erected,  although  he  might  secure 
the  rents  by  taking  possession  ;  but  that  it  was  the  personal  p-operiy 

■  of  A.(2) 

6.  The  distinction  above  pointed  out,  seems  to  have  been  reversed 
by  an  observation  of  the  court  in  Massachusetts;  that  "the  mortgagee 
has  the  whole  estate  against  all  hut  the  mortgagor^  in  the  same  manner  as 
if  it  were  absolute."(3)  This,  however,  is  a  mere  dictum^  and  the  law 
seems  to  be  well  settled  as  above  stated. 

7.  A  mortgage  gives  to  the  mortgagee  an  immediate  right  of  possession  ^ 
which  he  may  assert  by  entry  or  action,  unless  there  be  an  express 
stipulation  to  the  contrary.  But  this  is  often  the  case,  and  is  said  to  be 
a  xktry  ancient  practice,  as  early  as  the  time  of  James  I.(4)(a) 

8.  A  parol  agreement,  that  the  mortgagor  shall  remain  in  possession 
till  breach  of  condition,  is  insufficient ;  though  the  condition  be  to  sup- 
port the  mortgagee  and  his  wife,  which  could  probably  be  done  only 
out  of  the  estate  mortgaged. (5) 

9.  But  an  agreement  or  understanding,  that  the  mortgagor  is  to  re- 
main in  possession,  may  be  implied  from  the  terms  of  the  deed  or  other 
accompanying  instrument.  It  may  operate  by  estojipel^  covenant^  con- 
dition or  reservation. (6) 

10.  A  sold  to  B  a  mill,  took  a  mortgage  back,  and  gave  B  a  bond, 
stating  the  privileges  which  B  was  to  enjoy  in  using  the  water,  dam, 
&c.,  covenanting  to  build  machinery  in  the  mill,  and  not  follow  himself, 


(1)  Jewett  V.  Patridpe,  3  Fairf.  243. 

(2)  lb.  252.  See  Evans  v.  Merriken,  8 
Gill  &  J.  39. 

(3)  Fay  v.  Brewer,  3  Pick.  404 

(4l  Powsely  v.  Blackman,  Cro.  Jac.  659  ; 
Partridge  v.  Bere,  5  B.  &  A.  604;  Jackson  v. 
Bronson,  19  John.  325;  14  Pick  530-1; 
Dickenson  v.  Jackson,  6  Cow.  147;  Wilkin- 
son V.  Hall,  4  Scott,  301 ;  Doe  v.  Giles,  5 
Bing.  421 ;  Doe  v.  Cadwallader.  2  B.  &  Ad. 
473  ;  Doe  v.  Mai.sey,  8  B.  &  (;.  7  67  ;  Parting- 
ton V.  Woodcock,  6  Ad.  &  Ell.  695 ;  Doe  v. 
McLo8key,l  Alab.  (N.  S.)708;  Luckev  j;.  Hol- 
brook,  11  Met.  460;  Allen  v.  Parker.  27 
Maine,  531;  Miner  v.  Stevens,  1  Gush.  485; 


Hobart  v.  Sanborn,  13  N.  H.  226;  Harmon 
V  Short,  8  Sm.  &  M.  433;  Walcop  v.  Me- 
Kinney,  10  Mis.  229;  Smith  v.  Taylor,  9 
Ala.  633;  Mclntyro  v.  Whitfield,  13  Sm.  & 
M.  88  ;  Brown  v.  Stewart,  1  Md.  Cha.  87 ; 
Reed  v.  Davis,  4  Pick.  217  ;  Rogers  v.  Graze- 
brook,  8  Ad.  &  El!.  (N.  S.)  895. 

(5)  Cohnan  r.  Packard,  16  Mass.  39 ; 
Blaneyu  Bearce,  2  Greenl.  132. 

(6)  II  Pick.  477  ;  Dearborn  v.  Dearborn,  9 
N.  H.  117;  Flanders  v.  Lamphear,  lb.  201. 
See  Wilkinson  v.  Hall,  4  Scott,  301  ;  Lamb 
V.  Foss,  8  Shepl  240:  Rhoades  v.  Parker,  10 
N.  H.  83;  Holmes  v.  Fisher,  13  N.  11.9; 
Cooie,  376. 


(a)  Where  a  mortgage  is  upon  this  condition,  the  mortgagor  may  be  allowed  to  n^deem, 
upon  the  terms  of  a  pecuniary  compensation  for  past  and  future  support.  Austin  v.  Austin, 
9  Verm.  420. 


CHAP.  XXX.]  IT  CREATICS,  ETC.  407 

or  suffer  others  to  follow  the  same  occupation,  while  B  continued  it; 
and  reserving  to  himself  the  use  of  a  room  in  the  mill  for  a  certain 
time.  I[eld°the  bond  amounted  to  a  covenant,  that  B  might  occupy 
the  mill  till  breach  of  condition,  and  that  A  could  not  maintain  a  writ 
of  entry  at  common  law  again.st  B.(l) 

11.  So  wbcre  the  condition  of  a  mortgage  was,  that  the  rnprtgagor 
should  carry  on  the  farm  during  the  life  of  the  mortgagc^-Tand  deliver 
him  one-half  of  the  produce;  held,  the  mortgagee  had  no  right  to  enter,^ 
till  condition  broken  or  waste  committed  ;  or  except  for  the  purpose  ot 
takinir  his  share  of  the  produce. (2) 

I'i.'^Wherc  the  mortgagor  of  a  leasehold  estate  reserves  the  right  to 
remain  in  possession  till  breach  of  condition,  and  holds  over  after  such 
breach,  he  is  not  liable/or  rent  to  the  mortgagee,  previous  to  the  entry 
of  the  latter.  And,  if  a  mortgagor  have  tendered  the  debt  after  it  fell 
due,  the  title  to  the  estate  cannot  be  tried  in  a  suit  for  rent.(3) 

13.  A  mortgagor,  reserving  the  right  to  keep  possession  till  breach 
of  condition,  may  allow  a  stranger  to  occupy  under  him  ;  and  the 
latter,  having  entei'ed  before  breach,  is  not  a  trespasser  in  continuing  to 
occupv  afterwards.C-4) 

14. 'In  Vermont  and  Wisconsin,  a  statute  provides  tliat  tlie  mortgagor 
shall  have  the  right  of  possession  till  breach  of  condition,  unless  the 
deed  clearly  show  the  Contrary.  , 

15.  In  Massachusetts  and  Maine,  on  the  other  hand,  the  mortgagee  s 
right  of  possession  is  recognized,  unless  (in  Massachusetts)  there  is  an 
agreement  to  the  contrary. (5) 

16.  Where  there  is  no  agreement,  express  or  implied,  that  the  mort- 
gagor shall  retain  possession,  his  possession  is  strietly  at  the  loill  of  the 
mortjcujee.  It  is  not  adverse  to  the  latter.  lie  has  often  been  called  a 
tenant  at  loill.  But,  technically,  there  is  little  propriety  in  this  designa- 
tion. In  the  first  place,  a  mortgagor  wants  the  chief  mark  or  charac- 
teristic of  a  tenant  or  lessee,  which  is  the  payment  of  rent ;  for,  while 
a  mortgagor,  or  any  one  holding  under  him,  remains  in  possession,  he 
receives  the  rents  and  profits  for  his  own  account ;  and,  in  the  second 
place,  he  has  none  of  the  privileges  of  a  tenant  at  will,  in  regard  to 
notice  to  quit,  but  may  be  immediately  turned  out  without  any  notice, 
and  without  the  privilege  of  emblements,  the  crop  being  liable  for  the 
debt.(a)  Lord  Mansfield  very  justly  denominated  him  a  quasi  tenant 
at  will  ]{b)  at  the  same  time  remarking,  with  reference  to  the  prevailing 
language  of  the  law  on  the  subject,  that  "  nothing  is  so  apt  to  confound  as 
a  simile."     It  has  been  justly  observed,  however,  that  whatever  charac- 

(1)  B.-an  V.  Mtiyo,  5  Greenl.  89.  j      (4)  lb. 

(2)  Hartshorn  v.  Hui.bard,  2  N.  H.  453;  ^5)  Verm.  Rev.  St.  215;  Mass.  Rev.  bt. 
Flag^'  V.  Fbig(jr.  1 1  Pick.  475.  I  635 ;  Mo.  Rev.  St.  5C3  ;  Ruby  v.  Abyssinian, 

(3)  Mayo  v.  Fletcher,  14  Pick.  525.  J  &c.,  3  Shepl.  206. 


(a)  A  mortgapee,  not  in  possession,  has  no  emblements.  Toby  v.  Reed,  9  Conn.  225. 
See  Gillett  v.  Balcom,  6  Barb.  370 ;  Jones  v.  Thomas,  8  Blackl'.  428 ;  Shepard  v.  Piiil- 
brick,  2  Denio,  174. 

(b)  It  will  be  seon  presently,  that  while  a  mortp;an;or,  in  most  rospect.s,  Ims  a  loss  estate 
than  a  tenant  at  will,  lie  is.  in  one  particular,  treated  more  favorably  tiian  the  latter.  It 
has  been  stated,  [Estate  at  Will,)  tliat  the  assignee  of  a  tenant  at  will  becomes  a  trespasser 
by  entry  upon  the  land ;  while  tlie  better  opinion  is,  that  tlio  assignee  of  a  mortgagor  ia  not 
a  trespasser,  but  succeeds  to  all  the  rights  of  the  mortgagor. 


408 


MORTaAGE— WHAT  ESTATE 


[CHAP.  XXX. 


ter  we  may  give  to  the  mortgagor  in  possession  by  sufferance  of  the 
mortgagee,  he  is  still  a  tenant;  and  that  he  has  sometimes  been  called 
an  agent,  but  without  foundation,  for  he  is  not  liable  to  account.  Nor 
is  he  a  servant,  because  the  mortagee  has  no  possession.  Nor  can  the 
mortgagor,  or  one  claiming  under  him,  be  a  disseizor.{\) 

17.  A  mortgagor  will  be  restrained  by  the  Court  of  Chancery  from 
committing  waste,  even  before  condition  broken,  though  not  liable  there- 
for at  law  ;  and  thereby  diminishing  the  security  of  the  mortgagee. 
{Infra,  s.  25.)  But  the  mortgagor  is  not  bound  to  make  repairs.  If  he 
cut  down  trees  before  breach  of  condition,  the  mortgagee  cannot  have 
trover  against  him.  On  the  other  hand,  if  the  mortgagor  in  possession 
severs  anything  from  the  land,  sells  it  to  a  third  person,  and  the  mort- 
gagee then  takes  it  from  such  purchaser,  the  purchaser  may  maintain 
an  action  against  him.(2)(a) 

18.  A  mortgagor  in  possession  cannot  make  a  lease,  to  bind  the  mort- 
gagee.(3)  His  possession  cannot  be  considered  as  holding  out  a  false 
appearance,  or  inducing  a  belief  that  there  is  no  mortgage,  for  it  is  the 
nature  of  the  transaction  that  he  should  remain  in  possession,  and  the 
mortgagee  receive  interest ;  and  whoever  wants  to  be  secure,  Avhen  he 
takes  a  lease,  should  inquire  after  and  examine  the  title  deeds.  When- 
ever one  of  two  innocent  persons  must  be  a  loser,  the  rule  is,  "  qui  prior 
in  tempore,  potior  est  in  jure.''''  Hence,  the  mortgagee  may  maintain 
ejectment  for  the  land  against  the  lessee. 

19.  Such  are  the  principles  laid  down  by  Lord  Mansfield  on  this  sub- 


(1)  Moss  V.  Gallimore,  Dou<r.  219;  1  T.  R. 
378;  Doug.  21;  14  Pick.  500-1 ;  Jackson  z;. 
Fuller,  4  John.  215;  Crews  v.  Pendleton,  1 
Leifjh,  297  ;  Rockwell  v.  Bradley,  2  Conn.  1 ; 
Wakeman  u.  Banks,  lb.  445;  4  Kent,  155- 
6;  Blaney  V.  Bearce.  2  Greenl.  132;  McCall 
V.  Lenox,  9  S.  &  R.  311;  Souders  v.  Van 
Sickle,  3  Halst.  316;  Partridge  v.  Bere,  5  B. 
&  A.  604;  Christophers  v.  Sparke,  2  Jac.  & 
W.  234;  Noyes  v.  Sturdivant,  6  Shepl.  104; 
Castleman  v.  Belt,  2  B.  Monr.  158;  Hitch- 
man  V.  Walton,  4  Mees.  &  W.  409 ;  Cooper 
V.  Davis,  15  Conn.  556 ;  Joyner  v.  Yincent,  4 
Dev.  &  B.  512;  Miner  v.  Stevens,  1  Cush. 
485  ;  Doe  v.  Maisey,  8  B.  &  C.  767  ;  Litch- 
field V  Ready,  1  Eng.  L.  &  Eq.  460  ;  Stedrnan 
V.  Gasset,  18  Verm.  340  ;  Doe  v.  Tom,  4  Qu. 


B.  615  ;  V.  Olley,  12   Ad.  &  Ell.  481; 

Fuller  V.  Wadsworth,  2  Ired.  263. 

(2)  Farrant  v.  Love],  3  Atk.  723  ;  Smith  v. 
Goodwin,  2  Greenl.  173;  Campbellu  Macomb, 
4  John.  Clia.  534;  Fay  v.  Brewer,  3  Pick. 
203;  Peterson  v.  Clark,  15  John.  205;  15 
Conn.  556;  Salmon  v.  Clagett,  3  Bland,  380; 
Murdock,  2,  461 ;  Usborne  v.  Usborne,  1 
Dick.  75;  Johnson  v.  White,  11  Barb.  194; 
Boston,  &c.  V.  King,  2  Cush.  400  ;  Van  Wyck 
V.  Alliger,  6  Barb.  507  ;  Ensign  v.  Colburn,  11 
Paige,  503;  Gray  u.  Baldwin,  8  Blackf.  164; 
Brown  v.  Stewart,  1  Md.  Cha.  87;  Brick  ?;. 
Getzinger,  1  Halst.  Cha.  391 ;  Humphreys  t;. 
Harrison,  1  Jac.  &  W.  581;  Hampton  v. 
Hodges,  8  Ves.  105;  Goodman  v.  Kine,  8 
Beav.  379. 

(3)  Keech  v.  Hall,  Dougl.  21. 


(a)  But  it  has  been  held,  that  the  mortgagee  may  bring  an  action  for  timber  cut  by  one 
■who  entered  under  the  mortjjage.  Bussey  v.  Paige,  2  Shepl.  132  ;  Gore  v.  Jennes.s,  1  Appl. 
53.  See  Frothingham  v.  M'Oasiek,  II  Shepl.  403  ;  Langdon  v.  Paul,  22  Vern.  205  ;  Van  Pelt 
V.  McGraw,  4  Comst.  110;  Lull  v.  Matthews,  19  Verm.  322.  In  case  of  redemption,  he  is 
bound  to  account  for  wliat  he  receives.  lb.  If  the  mortgagee  has  expressly  or  impliedly 
autiiorized  the  cutting  of  timber,  it  belongs,  when  cut,  to  the  mortgagor;  otherwise,  the 
mortgagee  may  either  have  an  injunction  in  equity,  an  action  at  law.  or  claim  the  timber  it- 
self, unless  the  rights  of  third  persons  have  intervened.  Smith  v.  Moore,  II  N.  H.  55.  A 
mortgages  to  B,  then  to  C ;  neither  of  whom  takes  possession.  A  cuts  timber  from  the  land, 
after  which  B's  mortgage  is  discharged.  Held,  C  might  maintain  trespass  against  A.  San- 
ders V.  Reed,  12  N.  H.  558.  It  has  been  held,  that  a  mortgagee  has  not  a  sutBciently  vested, 
immediate  or  direct  title  to  the  property,  to  maintain  an  ac^tion  for  injuries  done  to  it  by  a 
thirdperson,  except  in  case  of  a  direct  intent  to  wrong  and  defraud  him,  and  the  mortgagor's 
insolvency  or  inability  to  pay  the  mortgage  debt.  Lane  v.  Hitchcock,  14  John.  213;  Bank, 
&c.  V.  Mott,  17  Wend.  554;  Gardner  v.  Heartt,  3  Denio,  232. 


cn.vp.  xxx] 


IT  CREATES,  ETC. 


409 


ject.  In  the  United  States,  tliey  derive  additional  force  from  the  uni- 
versal practice  of  registering  inoilgagcs  as  well  as  oilier  deeds.  If  not 
recorded,  a  mortgage  will  be  invalid  against  a  subsequent  lease  ;  but,  if 
it  is  recorded,  the  lessee  has  implied  notice,  and  takes  subject  to  the 
mortgage. 

20.  In  the  case  decided  by  Lord  Mansfield,  it  is  said  tlicLmoVtgagee 
had  no  notice  of  the  lease,  nor  the  lessee  of  the  niortgage;  and  that,  if 
the  mortgagee  had  encouraged  the  tenant  to  lay  out  money,  he  would 
be  bound  by  the  lease.  LLow  far  this  fact  would  qualify  the  eilect  of 
registration,  is  perhaps  a  doubtful  question. 

21.  It  is  to  be  observed,  however,  that  an  assignee  of  the  mortgage 
succeeds  to  all  the  rights  of  the  mortgagee  himself  Ilence,  if  alter  a 
lease  by  the  mortgagor,  the  mortgagee  assigns  the  mortgage,  the  as- 
signee may  have  ejectment  against  the  tenant. (1) 

22.  It  has  been  said,  that  the  mortgagee  may  consider  the  lessee  of 
the  mortgagor  as  a  trespasser,  a  disseizor,  or  a  lessee,  at  his  election.  It 
seems,  however,  that  the  mere  entry  of  such  lessee  does  not  constitute 
him  a  trespasser,  but  only  his  refusal  to  quit,  when  required..  In  Keoch 
V.  //(///,  the  case  above  cited,  it  is  said,  "  the  tenant  stood  exactly  in  the 
situation  of  the  mortgagor,"  against  whom,  clearly,  trespass  would  not 
lie  without  previous  notice.(2) 

23.  So  the  mortgagee  cannot  recover,  in  an  action  of  trespass  for 
mesne  profits  against  an  assignee  of  the  mortgagor,  the  rents  and  profits 
accruing  after  commencement  of  a  suit  by  the  mortgagee  to  obtain  pos- 
session.(3)(a)  In  deciding  this  point,  the  court  remark,  "it  seems  to 
be  admitted,  that  the  mortgagor  was  not  a  trespasser  before  he  was 
served  with  the  writ  in  the  action  to  foreclose."  "  The  question  sub- 
mitted is  the  same  as  if  the  action  were  between  the  mortgagee  and 
mortgagor."(4)  "  He  cannot  be  considered  a  tr£spasser  until  after  an 
entry  by  the  mortgagee."(5)  Chancellor  Kent  is  of  opinion,  that  the  as- 
signee is  no  more  a  trespasser  than  the  mortgagor  himself;  and  that 
this  is  the  better  and  more  intelligible  American  doclrine.(ti)(i) 

24.  In  Massachusetts,   Connecticut  and   Pennsylvania,  the  English 

B.  (K  S )  430 ;  AVilton  v.  Dunn,  7  Eng.  L.  & 
Equ.  406  ;  Knowles  v.  Maynard,  13  Met.  352  ; 
Doe  V.  Olley,  12  Ad.  &  Ell.  481 ;  Wlicelor  v. 
Branconib,  5  Q.  B.  373  ;  Field  v.  Swan,  10  Met. 
114;  Crosby  v.  Harlow,  8  Sliepl.  499  ;  S  mers 
V.  Saltus,  13  Denio,  214;  Turner  v.  Canierons, 
Ac,  2  Eng.  L.  &  Equ.  342;  Coke  v.  Pearsall, 
6  Ala.  542;  Massacliuaetts  v.  'Wilson,  10 
Met.  126. 

(3)  "^Vilder  v.  Iloughton,  1  Pick.  87. 

(4)  lb.  88. 

(5)  lb.  89. 
(C)  4  Keut,  150-7. 


(1)  Tiiunder  v.  Belcher,  3  E.  449. 

(2)  2  Cruise,  76;  1  Pow.  159,  n.,  160.  See 
Evans  v.  Elliot,  9  Adol.  &  El.  342 ;  Doe  v. 
Barton,  11,  307.  If  the  mortgagee  adopt  the 
lessee  as  ids  tenant,  hedoes  not  thereby  affirm 
the  lea-se,  but  the  lessee  holds  from  year  to 
year.  Doc  v.  Bucknell,  8  Carr.  &  P.  506; 
Bruwn  v.  Storey,  1  Scott,  N.  9.  See  Hill  v. 
Jordan,  30  Maine,  367  ;  Dixie  v.  Davies,  8 
Eng.  L.  &  Equ.  510;  Zeiler  v.  Bowman,  G 
Barb.  133;  Clark  v.  Abbott,  1  Md.  Ch.  474; 
Henshaw  v  Wells,  9  Humph.  568  ;  Smith  v. 
Taylor.  9  Ala.  C33 ;  Doe  v.  Warburlon,  1 1 
Ad.  &  Ell.  307  ;  v.  Goodier,  16  L.  J.  Q. 


{a)  But,  where  one  in  pos.session,  claiming  under  the  mortgagor,  refuses  possession  to  the 
mortsiagee  upon  his  entry  for  breach  of  condition,  the  latter  may  maintain  an  action  against 
him  for  mesne  profits,  though"  the  entry  be  insufficient  for  foreclosure.  Northhampton,  &c. 
V.  Amps,  8  Met.  1. 

{h)  Where  the  mortgagee  himself  purchases  under  a  sale  for  foreclosure  after  the  decree, 
he  nmy  treat  an  occupant  under  the  mortgagor  as  a  tenant  or  a  trespasser.  He  is  entitled 
to  the  rents  from  the  time  of  demanding  possession  or  obtaining  a  conveyance.  Caatleman 
V.  Belts,  2  B.  Monr.  158. 


410 


MORTGAGE— -WHAT  ESTATE 


[CHAP.  XXX. 


rule,  by  whicli  a  mortgagor  is  not  entitled  to  notice  to  quit,  has  been 
adopted.  In  New  York,  on  the  other  hand,  it  has  been  held,  that  eject- 
ment would  not  lie  against  a  mortgagor  as  a  trespasser,  without  notice; 
there  being  a  privity  of  estate  and  a  tenancy  at  will  by  implication. 
But  it  would  lie  against  an  assignee  of  the  mortgagor.  It  will  be 
seen,  hereafter,  that  the  action  of  ejectment  by  a  mortgagee  is  now 
abo]ished.(l) 

25  Though  mere  occupancy  does  not  constitute  the  mortgagor  a  tres- 
passer, yet,  ibr  any  wrongful  act  on  his  part  relating  to  the  estate,  the 
mortgagee  may  maintain  trespass  against  him  ;  as,  for  instance,  the 
cutting  and  carrying  away  of  timber  trees.  {Supra^  s.  16.)  Where  the 
land  mortgaged  is  wild  land,  a  question  has  been  made,  whether  a  gen- 
eral usage  to  cut  timber  upon  such  land  is  to  be  held  equivalent  to  an 
implied  license.  Trespass  also  lies,  by  an  assignee  of  the  mortgage, 
against  an  assignee  of  the  mortD;ao;or,  for  the  removal  of  fixttires,  though 
erected  by  the  latter  assignee. (2) 

26.  A  lease  by  the  mortgagor,  subsequent  to  the  mortgage,  is  valid 
between  him  and  the  lessee,  and  as  to  all  the  world  but  the  mortgagee, 
and  entitles  the  lessee  to  redeem. (3) 

27.  Where  a  lease  has  been  made  before  the  mortgage,  the  mort- 
gagee takes,  of  coui'se,  subject  to  the  former,  and  cannot  interfere  with 
the  lessee's  possession,  so  long  as  the  latter  fulfils  his  own  obligations  in 
regard  to  the  land.  But  a  mortgagee,  under  such  circumstances,  seems 
to  stand  on  the  footing  of  an}^  other  assignee  of  a  reversion,  and,  after 
condition  broken,  may  call  on  the  tenant  to  pay  rent  to  him  instead  of 
the  mortgagor.  Since  the  statute  of  Anne,  no  attornment  is  necessary 
to  create  this  liability  on  the  part  of  the  tenant.  Although  the  statute 
provides,  that  any  payment  of  rent  by  the  tenant  shall  be  effectual, 
until  he  has  notice  of  the  assignment ;  yet,  upon  the  giving  of  such  no- 
tice, the  title  of  the  assignee  relates  back  to  the  time  of  the  assignment. 
Upon  this  principle,  the  mortgagee,  in  the  case  supposed,  may  call  on 
the  tenant  to  pay  him  not  only  future  rents,  but  those  at  the  time  in 
arrear,  and  may  distrain  for  them.  This  remedy  is  said  to  be  a  very 
proper  additional  advantage  to  mortgagees,  to  prevent  collusion  be- 
tween the  tenant  and  the  mortgagor.(4)  It  has  been  seen,  that  in  sev- 
eral of  the  States,  by  express  statutes,  a  lessee  may  attorn  to  a  mort- 
gagee after  forfeiture.     (See  Attornment.) 

28.  Hence  it  appears,  that,  although  the  relation  of  landlord  and 
tenant  does  not  subsist  betwcfu  mortgagee  and  mortgagor,  it  may  arise 
between  the  mortgagee  and  the  lessee  of  the  mortgagor. 

29.  In  the  case  above  referred  to,  where  the  mortgagee's  claim  of 
rent  was  made  upon  breach  of  condition  by  the  mortgagor,  it  is  said,  the 
mortgagor  previously  received  the  rent  by  a  tacit  agreement  with  the 
mortgagee  ;  but  the  mortgagee  may  put  an  end  to  this  agreement  when 

(3)  See  Bncon  v.  Bowdoin,  22  Pick.  401 ; 
Ma.ss.  Rev.  St.  cli.  107,  sec.  13. 

(4)  Moss  V.  Galli 


(1)  Rockwell  V.  Bradley,  2  Conn.  1;  "Wake- 
man  V.  Banks,  lb.  445 ;  Groton  v.  Box- 
borouKl),  6  Mass.  50 ;  M'Call  v.  Lenox,  9  S. 
&  R.  311 ;  Jaoksou  v.  Laughbead,  2  Jolin.  75; 
Jackson  t>.  Fuller,  4,  215;  Jackson?;.  Hop- 
kins, 18,  487  ;  2  N.  Y.  R.  S.  312.  In  New 
Hampsbire,  the  morlgHgor  may  be  treated  as 
a  trespasser.  Pettengill  v.  Evans,  1  N.  H.  54. 

(2)  Stowell  V.  Pike,  2  Greeul.  387 ;  Smith 
V.  Goodwin,  2  Greenl.  173. 


limore,  Doug.  279;  Birch 
■u.  uiigni;,  1  X.  j^.  384;  Smith  v.  Shepard, 
15  Pick.  147  ;  Mansony  v.  U.  S.  &c,  4  A!ab. 
N.  S.  735  :  Castleman  v.  Belt,  2  B.  Mon.  158. 
In  Kentucky,  he  may  bring  an  action  Ibr  use 
and  occupation.  lb.  See  Rawson  v.  Eicke, 
7  Ad.  &  Ell.  451;  Field  v.  Swan,  10  Met. 
112. 


CHAP.  XXX.]  IT  CREATES,  ETC.  411 

he  pleases.  Whether  tliis  tacit  agreement  would  prevent  the  mortgagee 
from  claiming  rent  immt-diately  upon  the  execuiiou  of  the  mortgage, 
is  a  point  not  distinctly  decided;  but,  on  principle,  it  would  seern  to 
have  no  such  effect.  The  true  view  of  the  matter  would  appear  to  be, 
that  where  the  mortgage  is  made  before  the  lease,  the  latter  is  wholly 
invalid  against  the  former:  but  whci'e  the  lease  is  made  tint,  i't  is  by 
priority  paramount  to  the  mortgage,  and  the  lessee  cannot  therefore  be 
disturbed  ;  but  still  the  mortgagee  takes  the  place,  and  succeeds  to  all 
the  rights,  of  the  mortgagor. («) 

30.  if  the  mortgagee  himself  take  a  lease  from  the  mortgagor,  he 
shall  not  set  up  the  mortgage  as  a  defence  to  a  suit  for  the  rent.  If  the 
lease  be  made  first,  he  may  refuse  to  pay  rent,  which  shall  go  to  extin- 
guish the  mortgage  dcbt.(l) 

ol.  The  lessee  of  a  mortgagor,  the  mortgage  being  prior  to  the  lease, 
if  ejected  by  the  mortgagee,  is  not  entitled  to  emblements.(2) 

32.  The  doctrine  that,  where  a  mortgage  is^jrwr  to  a  lease  made  by 
the  mortgagor,  the  mortgagee  may  claim  rent  of  the  lessee  as  Ids  ten- 
ant, has  been  strongly  denied  in  New  Jersey  and  New  York.  It  is 
said  that  the  case  of  Birch  v.  Wright,  (I  T.  R  378,)  the  only  case  where 
the  point  is  pretended  to  have  been  settled,  does  not  decide  it,  but 
stands  upon  other  grounds. 

33.  A  mortgaged  land  to  B,  but  remained  in  possession  and  con- 
veyed to  C.  C  admitted  D  as  his  tenant.  C's  interest  in  the  land  was 
afterwards  sold  on  execution  to  E.  Immediately  upon  the  sale,  and 
before  a  deed  was  given,  D  utlorned  to  E,  and  agreed  to  occupy  at  a  cer- 
tain rent.  B  afterwards  notified  D  to  pay  rent  to  him,  and  D,  receiv- 
ing an  indemnit}',  accordingly  paid  it.  E  brings  an  action  against  D 
for  the  rent,  llehl,  these  facts  furnished  no  defence  to  the  suit,  A 
distinction  was  taken  between  the  case  of  a  lease ^^rior  to  the  mortgage, 
and  the  present  case,  where  it  was  subsequent  to  the  mortgage.  In 
the  former  case,  the  rent  passes  as  incident  to  the  reversit)n  which  is 
mortgaged,  and  the  mortgagor  is  estopped  b}^  his  own  deed  to  claim  it 
aftevrwards.  But  in  the  present  case,  the  defendant  was  never  tenant 
to  the  mortgagee,  nor  even  to  the  mortgagor.  Moreover,  a  statute, 
(Revised  L.  11)2,)  provides,  that  a  tenant  shall  not  attorn  to  a  straiKjer. 
Therefore,  D  could  not  lawfully  attorn  to  any  one  but  C  or  his  grantee, 
and  E,  holding  under  an  execution  sale  against  C,  was  to  be  regarded 
as  his  grantee ;  while,  on  the  other  hand,  B  was  to  be  held  a  stranger. 
Nor  was  the  attornment  to  B  justified  by  the  statutory  provision,  which 
excepts  mortgagees  from  the  general  prohibition  of  attornment ;  for 
this  merely  leaves  attornment  to  a  mortgagee  to  be  valid  or  void  ac- 
cording to  the  circumstances  of  the  case,  but  does  not  justify  attorn- 
ment to  any  but  the  grantee  of  the  landlord.(3)(6) 

(1)  Newall  V.  WriKlit,  3  Mass.  138.  See  ,  (3)  Soiidcrs  v.  Yan  Sickle,  3  Halst.  314; 
"Wolcott  V.  Sullivan,  1  Edw.  399.  M'Kirclur  v.  Ilawley,   IG  Joliu.   2S9.      See 

(2)  Lane  v.  King,  8  Wend.  5S4.  I  Cavis  v.  M'Clarj,  5  X.  H.  529. 

(a)  The  tenant  ia  held  liable  to  pay  to  tlie  mortpajjee  the  rents  due  at  the  time  of  notice, 
as  well  as  those  accruing  subsequently.     Pope  v.  BigL^s,  9  B.  &  C.  245, 

(b)  If  a  mortgagee  enter  for  breach  of  condition,  and  order  a  lessee  in  possession  to  pay 
him  the  rent;  tliuugli  the  entry  be  not  sucii  as  is  necessary  (or  foreclosure,  it  will  slill 
give  tiie  mortgagee  a  title  to  the  rent  as  against  the  mortgagor.  Stone  v.  Patterson,  19 
Pick.  47 G. 


412  MORTGAGE— WHAT  ESTATE,  ETC.  [CHAP.  XXX. 

34.  A  mortgagee  in  possession,  being  the  legal  owner  of  the  inheri- 
tance, has  power  at  law  to  commit  loaste.  (See  ch.  31,  s.  52.)  But  a 
court  of  chancery  will  restrain  him  from  doing  it,  unless  the  security 
is  defective;  or  will  decree  an  account  of  the  trees  cut  down,  and  an 
application  of  the  proceeds  to  pay,  first  the  interest,  and  then  the  prin- 
cipal, of  the  mortgage  debt.(l)(a)  In  Maine,  a  question  has  been  made, 
whether  a  mortgagee  after  entry  may  cut  and  carry  away  for  sale, 
timber  and  other  trees,  lie  must  account  for  the  proceeds  of  timber 
cut  by  a  third  person,  which  are  received  by  him. (2) 

35.  A  mortgagee  in  possession  cannot  make  a  lease  of  the  land  to 
bind  the  mortgagor,  unless  there  be  an  absolute  necessity  for  it;(i)  and 
if  the  mortgagor  bring  a  bill  in  equity  for  reconveyance,  and  tender 
the  amount  due,  although  the  mortgagee  set  up  such  lease  in  his  an- 
swer, and  offer  to  reconvej^  upon  the  plaintiff's  assenting  thereto,  a  re- 
convej'ance  will  be  decreed  free  from  this  condition. (3) 

(1)  Hanson  v.  Derby,   2  Vern.  392 ;  Sel.  \      (2)  Blaney  v.  Beace,  2  Greenl.  132  ;  Gore 
Cas.  in  Chan.  30;  2  Cruise,  81.     See  Evans  \v.  Zeneesa,  1  Appl.  53.     (See  infra.  31.) 
V.   Tliomas,    Cro.    Jac.    172;    McCormick  v.        (3)  Hutigerford  i;.  Clay,  9  Mod.  1. 
Digby,  8    Blackf.   99.  I 

A  tenant  of  tlie  mortiragor,  if  tlie  mortgage  be  forfeited  during  his  lease,  may  attorn  to, 
and  take  a  lease  from,  the  mortgagee,  and  the  mortgagor  can  then  maintain  no  action  for 
the  rent.  Jones  v.  Clark,  20  John.  51;  Magill  v.  Hinsdale,  1  Conn.  464;  Jackson  v.  De- 
lancy,  11  John.  365.  But  mere  notice  to  a  lessee  by  the  mortgagee  will  not  make  him  his 
tenant.     Jolmsou  v.  Jones.  9  Ad.  &  Ell.  809  ;    Evans  v.  Elliott,  lb.  342. 

A  mortgagee  remained  in  possession  six  years,  without  acknowledgment  of  the  mortga- 
gor's litle,  bought  out  a  tenant  for  life  of  the  equity,  and  occupied  twenty  years  more.  Held, 
his  occupancy  was  not  adverse  during  the  tenancy  for  life,  and  the  reversioner  might  re- 
deem.    Hyde  v.  Dallaway,  2  Hare,  528. 

In  connection  with  tlie  subject  of  leases  made  by  a  mortgagor,  may  be  stated  the  rule  of 
law  applicable  to  the  liability  on  the  part  of  the  mortgagee,  created  by  a  mortgage  of 
leasehold  property. 

It  was  once  held  that,  where  a  leasehold  is  assigned  by  way  of  mortgage,  the  mortgagee 
does  not,  like  other  assignees,  become  liable  to  the  covenants  of  the  lease  immediately,  but 
only  after  entry.  But  the  law  seems  to  be  now  settled  otherwise.  To  guard  against  this 
consequence  of  an  assignment,  it  is  usual  to  mortgage  a  term  by  waj'  of  under-lease.  But 
the  mortgagee  thereby  loses  the  right  of  rentwal,  which  he  would  have  as  assignee.  The 
niortgagee  is  liable  only  for  rent  due  after  the  mortgage  is  made;  not  for  prior  instalments. 
Eaton  V.  Jaques,  Doug.  457  ;  Williams  v.  Bosanquet.  1  Brod.  &  B.  238;  2  Cruise,  103,  n. 
a.;  1  Pow.  on  Mort.  197,  n.  1 ;  Blaney  v.  Bearce,  2  Greenl.  132  ;  Astor  v.  Miller,  2  Paige, 
68;   Morris  v.  Mowatt,  lb.  586;   McMurphy  v.  Minot,  4  N.  H.  251. 

Devise  to  A,  B  and  C,  subject  to  a  life  estate,  and  charged  with  the  payment  of  £200,  a 
legacy  to  the  children  of  the  testator's  niece.  Btfore  the  death  of  the  tenant  for  life,  A  and 
B  conveyed  their  reversion  by  way  of  mortgage  for  500  years.  Held,  an  action  of  debt 
would  not  lie  against  the  mortgagees  for  the  legacy.  Braithwaite  v.  Skinner,  5  Mees.  & 
W.  313. 

(a)  So  a  mortgagee  will  be  held  liable  for  pulling  down  cottages  on  the  land.  Sandon  v. 
Hooper,  6  Beav.  246. 

(b)  Otherwise  by  the  civil  law.     1  Dom.  356. 


CHAP.  XXXI.] 


EQUITY  OF  KEDEMPTIOX,  ETC. 


413 


CHAPTER   XXXI. 

EQUITY   OE    REDEMPTION— XATUHK  OF    THE  ESrATK— WHO  MAY 
UEDKEM,  ETC. 


1.  Distinction  between   an   equity  of  re- 

dempHon  nntl  a  trust. 

2.  Mi)rt>ritgor  has  seiziu. 

3.  Curti'Sj. 

4.  Dower. 

8.  AVhctlier  assets. 

9.  Suliject  to  legal  process. 

12.  Wlu)  may  redeem. 

13.  SuVjso(iueiit  incumbrancers. 
10.  Dowress,  &c. — on  what  terms. 


22.  Tlio  Crown. 
22  a.  lleir.x,  &c. 

23.  Wlietlier  the  whole  debt  must  Lo  pnic]. 
25.   Tacking. 

29.  Whetiier  known  in  TT.  S. 

30.  Future  advance.'',  &.c. 
37.   Time  of  redemption. 

43.  No  redemption  in  case  of //aurf. 
45.  Terras  of  redemption — account — repairs 
interest,  &a 


1.  An  equity  of  redemption  has  been  held  to  resemble  a  trust.  But 
in  some  respects  the  rights  of  a  mortgagor  are  better  protected  by  the 
law,  than  those  of  a  cestui.  A  trust  is  said  to  be  created  by  the  contract 
of  the  party,  and  therefore  subject  to  his  directions.  But  an  equity  of 
redemption  is  inlierent  in  the  laud^  and,  as  has  been  seen,  not  liable  to  be 
im[)aired  even  by  express  restrictions.  It  is  in  fact  the  creature  of  a 
court  of  equity,  and  not  an  interest  reserved  by  the  parties.  The 
former,  anciently,  did  not  bind  a  party  coming  to  the  estate  in  the  j)ost ; 
while  the  latter  adhered  to  the  estate,  into  whose  hands  soever  it  might 
come.(l)(a) 

2.  A  mortgagor,  after  breach  of  condition,  if  in  possession,  has,  in 
the  view  of  a  court  of  equity,  an  equitable  seizin,  equivalent  to  a  legal 
seizin  in  the  view  of  a  court  of  law.  Ilence,  his  estate  is  subject  to  con- 
veyance, devise,  descent,  entailment,  mortgage,  and  to  be  charged  with 
an  annuity.  It  is  not  a  mere  ri'jht,  but  an  estate  in  the  land,  whereof 
in  equity  there  may  be  a  seizin.     The  mortgage  itself  being  only  a 

(1)  Pawlett  V.  Att'y-Gen.,  Hard.  4G9;  17  Yes.  133;  2  Cruise,  88;  "U'ood  v.  Jones,  Meigs, 
513. 


(a)  An  equity  of  redemption  is  a  title  in  equity,  not  merely  a  trust.  1  Sand.  Us.  203. 
See  Sampson  v.  Paltison,  1  Hare,  533 ;  Downs  v.  Morris,  3  Hare,  404.  A  mortgage 
deed  does  not  per  ae  create  a  trust;  it  conveys  tiie  estate  subject  to  a  condition. 
The  mortgagee  is  not  accountable  to  any  one  until  he  enters,  takes  possession,  and  receives 
the  rents  and  profits,  in  which  case  he  may  in  some  sense  be  considered  as  a  trustee,  for  he 
is  to  render  an  account  ;  but  this  must  be  done  in  the  manner  and  for  the  purposes  pro- 
vided in  the  several  statutes  for  redei-niing  morti^nges,  and  he  is  not  trustee  in  any  other 
litrht.  Hence,  under  the  slaluio  giving  equity  jurisdiction  of  trusts  to  the  Supreme  Court 
in  Mass:icliusetts.  tiie  assignee  of  a  mortgngor  cannot  maintain  a  bill  for  injunction  against 
the  mortgagee,  wiio  is  pruceoding  to  recover  possession  at  law ;  and  for  a  decree  that  the 
mortgage  be  cancelled.     Hunt  v.  Maynard,  6  Pitk.  489.     See  Eastman  v.  Fo.ster,  8  Met.  19. 

A  mortgagee  is  not  precluded,  by  the  nature  of  his  relation  to  the  mortgagor,  from  buy- 
ing the  land,  under  a  mortgage  sale,  at  a  low  price.  Mott  v.  Walkley.  3  Edw.  590.  Con- 
veyance to  A  in  trust,  chargeable  with  a  certain  sum,  subject  thereto  in  trust  for  B,  and  with 
a  power  of  sale  to  A.  Held,  A  could  not  foreclose.  1  Hare,  533.  See,  as  to  the  nnture  of 
the  estate  or  title  called  an  equity  of  redemption,  Burgess  v.  W'heate,  1  N.  Bl.  145;  Prestou 
V.  Christma.s,  2  Wits.  86;  Viscount,  Ac.  v.  Morri.s,  3  Hare,  407;  Asay  v.  Hooner,  5  Barr, 
21  ;  Borst  v.  Boyd,  3  Saiidf.  Ch.  501 ;  Silvester  v.  Jarnuin,  10  Price,  84:  Coates  v  Wood- 
worth,  13  lilin.  654;  Chapman  v.  Mull,  7  Ircd.  Equ.  292;  Clarke  v.  Sibley,  13  Met.  210; 
Hewitt  v.  Huling,  11  Penns.  27  ;  Pratt  v.  Thornton,  28  Maine,  355;  Bank,  "&c.  v.  Whyte,  1 
Md.  Cha.  536. 


414 


EQUITY  OF  REDEMPTIOX,  ETC. 


[CHAP.  XXXI. 


cliose  in  action^  unless  the  ownership  of  the  land  is  in  the  mortgogor,  it 
is  in  nobody.  The  interest  of  the  latter  is  no  otherwise  a  right  of 
action  than  every  tnist^  which,  though  not  to  be  executed  but  by  sub- 
poena  out  of  Chancery,  is  still  regarded  as  real  estate.(l)  In  South 
Carolina  and  Pennsylvania,  the  right  of  redemption  is  not  an  ec[uitable, 
but  a  strietlj^  legal  riglit.(2) 

3.  On  the  same  principle,  an  equity  of  redemption  is  subject  to 
curtesy,  if  the  wife  is  in  possession  of  the  land  during  coverture. 
For,  though  such  possession  is  a  mere  tenancy  at  will,  it  is  in  equity 
that  of  the  real  owner,  subject  only  to  a  pecuniary  charge.  Nor  is  the 
husband  to  be  deprived  of  curtesy  on  the  ground  of  laches,  in  not 
paying  off  the  mortgage  and  thereby  acquiring  an  absolute  title,  by 
analogy  to  the  rule  which  requires  of  him  actual  entry  upon  a  legal 
estate  of  the  wife  ;  for  the  payment  of  a  mortgage  is  a  f;ir  more  difficult 
matter  than  a  mere  entry  upon  land ;  besides  that  the  mortgagee  is  en- 
titled to  notice,  before  he  is  bound  to  accept  such  payment.  Upon 
these  grounds,  a  decision  of  Sir  Joseph  Jekyll,  disallowing  curtesy  in 
an  equity  of  redemption,  was  reversed  by  Lord  Hardvvicke.(3) 

4.  But,  in  England,  independently  of  an  express  statute,  an  equity 
of  redemption  is  not  subject  to  dower.  In  this  respect,  it  is  placed 
on  the  same  footing  with  a  trust.{-i)  In  one  case,  {Banks  v.  Suito7i,){o) 
the  Master  of  the  Eolls  said,  he  did  not  know,  or  could  find  any  in- 
stance, where  dower  of  an  equity  of  redemption  was  controverted  and 
adjudged  against  the  dowress;  and  decreed  in  favor  of  the  claim.  But 
afterwards,  (in  Attorney- General  v.  Scott,){6)  Lord  Talbot  made  a  con- 
trary decision  in  regard  to  a  trust,  which  has  been  since  uniformly 
adhered  to.  And  no  peculiar  equities  on  the  part  of  the  wife  will 
operate  to  change  the  rule  in  her  favor ;  as,  for  instance,  the  facts, 
that  the  husband  expressed  his  expectation  and  desire  that  she  should 
have  dower,  and  was  so  instructed  by  the  person  who  drew  his  will; 
that  the  wife  is  left  for  the  most  part  otherwise  unprovided  for;  and 
that  certain  articles  of  luxury,  such  as  a  coach  and  horses,  and  plate, 
are  bequeathed  to  her^  for  which  she  can  have  no  use  without  dower 
to  support  her.(7)(<;<) 

5.  In  the  United  States,  the  English  rule  is  not  adopted.  It  has 
been  seen,  that  in  several  of  the  States  dower  is  allowed,  by  express 
statute,  in  all  equitable  estates;  and  decisions  to  the  same  effect,  in  re- 
gard to  equities  of  redemption,  have  been  made  in  New  York,  Con- 
necticut and  Massachusetts.  Chancellor  Kent  saj^s,  that  dower  is 
allowed  in  equities  of  redemption  in  Massachusetts,  New  York,  Con- 


(1)  2Crui.se,  113;  2  Abr.  Eq.  728;  Cas- 
borne  v.  Searie,  1  Atk  603 ;  Ellilliorpe  v. 
Devviiifr,  1  CLiipm.  140. 

(2)  Slate  V.  Laval,  4  M'C.  340;  Anderson 
V.  Neff,  II  S.  &  R.  223. 


(3)  Casborne  v.  Inglis,  2  Abr.  Equ.  128;  1 
Atk.  603. 

(4)  2  Cruise,  122. 
(5 J  2  P.  Wms.  719. 

(6)  For.  138;    1  Cruise,  444. 

(7)  Dixon  V.  Saville,  2  Cruise,  117. 


(a)  By  a  recent  statute,  dower  is  allowed  in  equitable  estates.  In  Maryland,  and  the 
Maryland  part  of  the  Di.strict  of  Columbia,  the  old  English  rule  prevailed,  till  expressly 
changed  by  statute  in  the  year  1818.  See  Miller  v.  Stump,  3  Gill,  304;  M'lver  v.  Cherry, 
8  Humph.  713;  Slello  v.  Carroll,  12  Pet.  201;  Mayburry  v.  Brien,  15  lb.  21. 


CHAP.  XXXI.]  EQUITY  OF  REDEMPTION,  ETC,  415 

necticut,  New  Jersey  ('.<)  IV'Uius^lvauiu,  Yir/^iiuu,  AUiljania,   Indiana, 
and  probably  most  or  all  of  the  other  states.(l) 

0.  Tluis,  if  the  executor,  &c.,  of  the  husband  redeem  the  mortga^'e, 
the  widow  shall  have  dower.(2) 

7.  Even  in  England,  where  a  mortgage  is  ina(]c  for  years,  and  not  in 
fee,  dower  is  allowed  in  the  equity  of  redemption.  If  the  mortgage 
has  been  satisfied.  Chancer}'"  will  remove  the  term  for  tk<r  beneiit  of 
the  widow  ;  if  not,  she  will  be  bound  to  pay  one-third  of  the  interest 
or  of  the  prineipal.(3) 

8.  In  England,  au  equity  of  redemption  Avas  formerl}'  not  legal 
asstts  in  the  hands  of  the  heir,  but  he  might  ])lead  "  riens per  descent." 
Since  the  statute  of  frauds,  like  a  trust,  it  has*  been  held  to  be  assets  in 
equity  ;  but  only  to  pay  debts  of  that  description,  to  which  the  land 
would  have  been  lial)le,  if  it  had  been  a  legal  estate.  Where  the 
mortgage  is  made  for  years,  the  equity,  being  incident  to  the  reversion 
in  fee,  is,  like  the  latter,  legal  assets.{4i)  By  St.  S  and  4  Wm.  IV,  c.  104, 
equities  of  redemption,  generally,  are  made  legal  assets. 

9.  In  England,  an  equity  of  redemption  has  been  held  not  liable  to 
be  taken  on  execution.ib)  And  it  has  been  doul)ted,  whether  this 
principle  is  changed  by  St,  1  and  2  Vict.,  c.  110.  But  ajucl'jnient  is  a 
lien  upon  an  equity  of  redemption.  But,  in  the  United  States,  equities 
of  redemption  are  almost  universall}'  made  subject  to  legal  process 
for  the  debts  of  the  mortgagor.  This  subject  will  be  considered  here- 
after.(/;)     (See  eh.  35.) 

10.  On  the  other  hand,  the  interest  of  a  mortgagee  cannot  be  taken 
upon  execution  before  foreclosure.(f)) 

11.  Although  an  equity  of  redemption  is  liable  to  be  taken  on  exe- 
cution by  third  persons,  the  mortgagee  himself  shall  not  be  allowed  to 
take  it  upon  a  judgment  recovered  for  the  mortgage  debt;  because  a 

(1)4  Kjnt,  44;  Cooper  v.  Whitney,  3  !  Litllefield  v.  Crocker,  30,  192;  Rossiter  v. 
Hill,  95.  See,  also,  Midi.  Rev.  Sts.  262,  2ri3;  !  Cossit,  15  N.  H.  38;  Clough  v.  Elliott,  3 
Ark.  Rev.  Sts.  337;  Verm.  Rev.  Sts.  289;  j  Fost.  182  ;  Mattliewsoii  v.  Smith,  1  Ang.  22; 
Wise.   Re%'.  Sis.  333  ;  Titoinpsoii  v.  Boyii,  1  i  Datifortli  v.  Sinilli,  23  Yerm.  247  ;  Brown  v. 


N  J.  58  ;  2,  543  ;  Tabelo  v.  T!il)ele,  1  Jolin. 
Cha.  45;  Titus  v.  Neilson,  5.  452;  Mantz  v. 
BuclKitian,  1  Md.  Ch.  202  ;  Iloo.'land  j;  Watt, 
2  Saiidr.  Cha.  148 ;  Deiitoii  v.  Xaunv,  8  Barb. 
618;  Fnwt  v.  Peaco.k,  4  Edw.  (Jha.  678; 
Bolton  V  Ballard,  13  Mass.  229;  Hildreth  v. 
Jones,  13  Ih.  525:  Niles  v.  Nye,  13  Met.  135  ; 
Lund  ('.  Wood.s,  11  Met.  566;  Wedge  v. 
Moore,  6  Cusli.  8;  Raynliam  v.  Wilrnartli.  13 
Met.  414;    Gage  v.  Ward,  25   Maine,  101; 


Lapham,  3  Cush.  553  ;  Tillinghast  v.  Fry,  1 
Ang.  53 ;  Yan  Yronker  v.  P]a.stman,  7  Met. 
157;  Thayer  v.  Ricihards,  19  Picic.  398; 
Henry's  case,  4  Cush.  257. 

(2)  13  Ma.ss.  227,  525. 

(3)  2  Cruise,  123. 

(4)  2  Cruise,  123-4. 

(5)  Pluiiket  V.  Penson,  2  Atk.  290 ;  Forth 
V.  Duke,  &.C.,  4  Madd.  501 ;  Coote,  79,  80. 

(6)  1  Pow.  255,  n.  1.     (See  ch.  32.) 


(«)  In  this  State,  a  contrary  doctrine  was  formerly  held.  Montgomery  v.  Bruere,  1  South. 
260.  In  Ohio,  where  the  condition  is  broken  before  marriage,  and  the  equity  of  redemption 
released  after,  there  is  no  dower.     Rands  v.  Kendall,  15  Ohio,  671. 

{!>)  Iti  thi.i  pnrt  of  tiie  District  of  Coluinhia  ceded  by  .Maryland,  they  are  not  thus  liable. 
Yan  Ness  v.  Hyatt.  13  Pit.  294.  See,  also,  for  the  law  in  South  Carolina,  State  v.  Laval, 
4  MtC.  340;    [lill  v.  Smith,  2  McL.  448. 

In  Now  York,  an  equity  ol  roilemption  is  held  liable  to  e.veculion,  by  the  common  law  cf 
that  State.  Jacksou  v.  Willard,  4  John.  41;  Hitchcock  v.  Harrington,  6,  290;  Collins  v. 
Torry,  7,  278. 


416  EQUITY  OF  REDEMPTION,  ETC.     '  [CHAP.  XXXI. 

shorter  time  is  allowed  for  redeeming  an  equity,  sold  on  execution, 
than  for  redeeming  the  land  itself  (l)(a) 

12.  With  regard  to  the  persons  who  are  entitled  to  redeem,  it  is  of 
course  to  be  understood,  that  any  part}^  in  whom  the  law  vests  an 
equity  of  redemption,  either  by  its  own  operation,  or  by  his  voluntary 
act,  may  redeem  the  mortgage ;  indeed,  the  latter  part  of  the  proposi- 
tion is  a  mere  repetition  of  the  former,  since  an  equity  of  redemption  is 
itself  nothing  else  but  the  right  or  power  to  redeem.  It  seems,  any 
one  may  redeem  a  mortgage,  who  is  entitled  to  the  legal  estate  of  the 
mortgagor,  or  claims  a  subsisting  interest  under  him.(2)(Z)) 

13.  Any  subsequent  incnmhrancer  may  redeem,  and  thereby  take  the 
place  of  the  prior  one;  such  as  a  judgment  creditor,  in  those  States 
where  a  judgment  constitutes  a  lien  on  real  estate. (c)  And  in  England, 
the  cogmzee  of  a  statute,  (see  ch.  29,  sec.  1,  n.,)  acknowledged  after  the 
filing  of  a  bill  for  foreclosure,  has  been  allowed  to  redeem  even  after 
the  foreclosure,  if  recent,  and  although  the  mortgagee  had  no  notice. 
So  where  a  tenant  mortgages  for  years,  and  the  land  escheats,  the  lord 

(1)  Atkins  V.  Sawyer,  1   Pick.  351 ;  Camp  <  (2)  Gibson  v.  Crcliore,  5  Pick.  149;  Grant 

V.  Coxe,  1   Dev.  &  B.  52;   Goring  v.  Shreve,  '  v.  Duane,  9  Jolin.   591 ;  lb.  611  ;    Smitb  v. 

7  Dana,  64;   Palmer  v.  Foote,   7  Paigre,  437  ;  ,  Manning-,  9  Mass.  422;  4  Kent,  156;  N.  Y. 

Waller  V.   Tate,  4  B.  Mon.   531;    Lyster  v.  i  St.  1838,  262;  Parvist'.  Brown,  4  Ired.  Equ. 

Holland.  1  Ves.  jun.  431 ;  Tice  v.  Annin,  2  i  413  ;  Boarman  v.  Catlett,  13  Sm.  &  M.  149. 
John  Ch.  130.                                                      ' 

(a)  But  where  a  negotiable  note  secured  by  mortgage  is  assigned  witliout  the  mortgage, 
the  equity  of  redemption  may  be  attached  and  sold  on  execution  by  the  indorsee.  Crane  v. 
March,  4  Pick.  131. 

One  iiolding  a  note  secured  by  mortgage,  indorsed  the  note  and  assigned  the  mortgage 
to  a  third  person.  Tiie  mortgagor  afterwards  died,  liaving  devised  all  his  real  estate  to  the 
mortgagee.  The  latter  gave  his  own  note  to  the  a.ssignee  for  the  amount  of  tlie  first  note, 
with  the  interest  which  h;;d  accrued  on  it,  tlie  second  note  bearing  a  memorandum,  that 
wlieu  paid  it  would  disch.srge  the  first.  The  assignee  retained  the  first  note,  brought  a  suit 
on  the  second,  recovered  judgment,  levied  on  tlie  right  of  redemption,  and  indorsed  the  pro- 
ceeds on  the  first  note  in  part  payment.  In  an  action  brought  by  tlie  purchaser  of  the 
equity,  held,  the  levy  was  void,  the  facts  showing  a  sale  in  beljalf  of  the  mortgagee  of  the 
right  of  redemption,  for  the  purpose  of  paying  the  mortgage  debt,  Washburn  v.  Goodwin, 
17  Pick.  137. 

In  New  York,  an  equity  of  redemption  cannot  be  sold,  upon  an  execution  founded  on  a 
judgment  at  law,  for  the  mortgage  debt.     2  Rev.  St.  368. 

In  Pennsylvania,  the  sale  of  land  mortgaged,  under  an  execution  upon  the  debt,  extin- 
guishes the  incumbrance  and  passes  an  absolute  title  to  the  purchaser.  Pierce  v.  Potter,  7 
Watts,  475.  If  the  mortgagee  purchases  the  land  for  less  than  the  debt,  the  mortgagor 
cannot  compel  an  entry  of  satisfaction  on  tlie  mortgage.     lb. 

In  Kentucky,  it  is  held,  that,  although  an  equity  cannot  lawfully  be  sold  on  execution,  in 
a  suit  by  the  mortgagee;  yet.  if  sold,  and  if  the  purchaser  pay  the  mortgage  debt,  he 
stands  in  the  place,  and  succeeds  to  the  rights,  of  the  mortgagee.  Goring  v.  Shreve,  7 
Dana,  221.  If  land  be  mortgaged  to  a  surety  as  indemnity,  it  cannot  be  taken  on  execution 
for  the  debt.  Bronson  v.  Robinson,  4  B.  Moiir.  143.  See  Roe  v.  Couch,  1  Root,  452; 
Buck  V.  Sherman,  2  Doug.  (Mich.)  176;  Bratton,  &c.,  8  Barr,  164;  Mott  v.  Clark,  9,  399; 
Towers  v.  Tuscarora,  &c.,  8,  297  ;  Hartz  v.  Wood.«,  lb.  471  ;  Cathcart's,  &c.,  13  Penns.  416; 
Klock  V.  Cronkhile,  1  Hill,  108;  Brouster  v.  Robinson,  4  B.  Mon.  143;  Freeby  v.  Tupper, 
15  Ohio,  467. 

{b)  Thus,  a  lessee,  who  took  a  lease  after  the  mortgage.  So,  it  seems,  the  holder  of  a 
mere  easement  in  the  land.  Bacon  v.  Bowdoin,  22  Pick.  401.  Wliere  one  co-tenant  con- 
veys a  parcel  of  the  land  by  metes  and  bounds,  takes  back  a  mortgage  and  assigns  it;  a 
lessee  for  years  from  the  mortgagor  may  redeem  the  mortgage  from  the  assignee,  if  he  has 
no  title  under  the  other  co-tenant.     lb.  2  Met.  591. 

(c)  In  New  Hampsliiro,  an  attaching  creditor.  N.  H.  St.  1845,  233.  But  not,  in  general, 
a  mere  equitable  owner,  such  as  a  cestui  que  trust;  nor  one  having  a  mere  personal  claim, 
such  as  an  annuitant,  or  a  party  holding  a  contract  in  relation  to  the  land.  2  Story's  Equ. 
sec.  1023;  Upham  v.  Brooks,  2  W.  &  M.  407  ;  Porter  v.  Read,  1  Appl.  363. 


CHAP-  XXXI.] 


EQUITY  OF  REDKMrTIOy,  ETC. 


417 


of  the  manor  may  redeem.  So,  the  assignee  of  a  bankrupt;  cv(;n  a 
proivliiifj  as.signee,  wlio  buys  an  equity  long  abandoned  for  a  trifling 
.sum.(l) 

14.  In  Massachusetts,  where  an  equity  of  rcdcinption  is  attatdied, 
the  owner  may  still  make  another  mortgage  of  it,  and  the  seeond 
mortgagee,  or  his  assignee,  may  redeem  I'rom  the  execution  pur- 
chaser.('2)  '" 

1">.  On  the  same  principle,  the  purchaser  of  an  equity  of  redemp- 
tion, sohl  upon  execution  against  the  mortgagor,  may  redeem  the 
mortgage. 

If).  A  dowress  or  jointress  may  redeem.   So,  a  tenant  by  the  curtesy. 

17.  In  one  case,  in  Mas.sucliusetts,(8)  it  was  doubted,  on  account  of 
the  court's  limited  equity  jurisdiction,  whether  a  widow  could  redeem, 
for  the  purpo.se  of  entitling  herself  to  dower.  But  it  seems  to  be 
now  well  settled  that  she  may.  But  dower  is  subject  to  the  rights 
of  the  mortgagee,  and  he  may  defend  against  the  claim  till  his  mort- 
gage is  satisfled, 

18.  It  has  been  heretofore  held,  that,  where  a  purchaser  of  the  equity 
of  redemption  pays  the  mortgage  debt,  and  takes  an  assignment  of 
the  mortgage,  the  widow  cannot  redeem  without  paying  the  whole 
debt.  But  a  recent  case  in  Massachusetts  decides,  that  a  wife  who 
signed  the  mortgage,  releasing  her  dower,  may  redeem  after  the 
husband's  death,  by  paying  her  proportion  of  the  debt,  estimated 
according  to  the  value  of  the  rest  of  the  estate,  including  the  rever- 
sion. If  another  person,  claiming  under  the  mortgagor,  redeems, 
she  will  be  entitled  to  her  share  of  the  land,  by  paying  her  share  of 
the  debt,  according  to  the  value  of  her  life  interest  in  one-third  of  the 
estate.(4)(a) 


(I)  Crisp  v.  Heath,  7  Vin.  Abr.  52  ;  2  Litt. 
3.T4;  Bank.  &a  v.  Carroll,  4  B.  Monr.  4-5; 
Do\viu>  V.  Morris,  3  Hare,  404  ;  1  Pow.  262 
a,  2G3  a.  Whether  a  second  mortgagee  can 
redeem  from  one  who  purchases  at  a  sale 
uniier  iho  first  mortgaije,  qu.  Ih.  In  Ala- 
bama, a  second  mort;;a;.;ee  may  either  pay  the 
fir.st  mortiiage,  and  then  file  a  bill  to  have  a 
sale  tor  piymeiit  of  both  mort>;a<;cs,  or  he 
may  tile  a  iilll  for  foreclosure  without  payment, 
making  all  necessary  parties,  and  have  a  de- 


cree for  sale  to  pay  both.  Cullum  v.  Irwin,  4 
Alab.  (N.  S  )  452  ;  Chambers  v.  Mauldin,  4 
Alal).  (N.  S.)  477. 

(2)  Bigeiow  V.  \Yillson,  1  Pick.  485.  See 
ch.  32. 

(3)  Bird  V.  Gardner,  10  Mass.  364.  See 
Wilkins  v.  French,  2  Appl.  111. 

(4)  Van  Duynei».  Thayre.  14  Wend.  233; 
Gibson  v.  Crolioro,  5  Pick.  146;  5  John.  Cha. 
482 ;  Cass  v.  Martin,  6  N.  H.  25  ;  Van  Vronc- 
ker  V.  Eastman,  7  Met.  157. 


(ai  Where  a  wife  pledges  her  own  land  for  a  debt  of  the  husband,  she  has  a'.i  the  rights 
of  a  surety'.  But,  if  sha  joins  in  a  mortgage  of  his  land,  she  cannot  chtim  that  it  bo  satis- 
fied I'rom  hia  interest  alone,  so  as  to  give  her  a  right  of  dower.  Ilawley  v.  Braiiford,  9 
Paige,  200.  In  case  of  a  sale  under  the  mortgage,  she  shall  have  dower  only  in  the  sur- 
plus remaining  after  payment  of  the  debt;  but  the  costs  of  suit  will  not  be  allowed  as 
against  liur.     lb. 

Ill  Miclii^an.  if  the  heir  or  other  representative  of  the  mortgagor  redeem  the  land,  the 
widow  may  either  pay  her  share  and  take  one-third  of  the  land,  or  take  so  much  less  thau 
a  third  as  will  be  equivalent  to  her  siiare  of  the  debt.     Mich.  Rev.  St.  262-3. 

In  Arkansis,  wiiere  land  subject  to  mortgage  is  sold  for  the  mortgage  debt  afler  the 
husband's  ileath,  she  will  be  entitled  to  the  interest  of  oneihird  of  any  surplus.  Hov.  St. 
337.  In  Vermont,  the  widow  of  a  mortgagor  has  dower  upon  payment  of  her  proportion 
of  the  debt,  under  direction  of  the  Probate  Court,  if  the  heir,  &c.,  pay  tiie  delit,  she  has 
one-third  of  the  liiid,  deducting  the  value  of  tiie  payment.  Tlio  adiniiiisiraior  is  required 
to  pay  the  morii^a^re,  if  for  the  benefit  of  those  interested  to  redeem,  either  from  llie  per- 
Bonil,  or  by  sale  of  tlie  real  estate.  If  there  is  sufficient  personal  estate,  the  court  may 
order  dower  in  the  whole  land.     Verm.  Rev.  St.  289. 


Vol.  I. 


27 


418 


EQUITY  OF  REDEMPTION,  ETC. 


[CHAP.  XXXL 


19.  If  tlie  purchaser  of  au  equity  of  redemption  takes  an  assignment 
of  the  mortgage,  and  continues  in  possession  of  the  land  more  than 
three  years  Ironi  such  assignment,  the  condition  having  been  broken 
before  the  sale,  and  then  the  husband  dies;  the  widow  may  redeem, 
unless  she  has  had  notice  of  his  being  in  possession  for  condition 
broken.  And,  in  such  case,  the  defendant  shall  account  only  for  rents 
received,  and  be  allowed  only  for  repairs  made,  since  the  husband's 
death.(l) 

20.  A  m^ortgagor  devised  the  estate  mortgage  1  to  his  son,  who  died, 
leaving  a  widow.  The  executor  sold  the  equit}',  purchased  it  himself, 
and  redeemed  the  mortgage,  paying  one-half  of  it  with  assets  in  his 
hands  as  executor,  according  to  the  directions  of  the  will,  and  the  rest 
with  his  own  funds.  The  sale  was  affirmed  by  the  son's  widow  and 
heirs.  Held,  the  widow  should  have  for  her  dower  the  interest  for  her 
life  of  one-third  of  the  price  of  the  equity,  and  one-third  of  the  amount 
paid  from  the  testator's  estate  to  extinguish  the  mortgage.(2) 

21.  A  mortgaged  land,  his  wife,  B,  joining,  to  release  her  dower. 
After  the  death  of  A,  his  administrator  sold  the  equity  of  redemption 
to  C,  who  took  possession  of  the  land.  C  then  paid  the  mortgage  debt, 
took  an  assignment  of  the  mortgage,  and  afterwards  made  a  declaration 
that  he  held  for  the  purpose  of  foreclosure.  B  had  no  notice  of  his 
purpose  to  foreclose,  and  brought  a  bill  in  equity  to  redeem.  Decreed 
for  the  plaintiff,  and  that  the  defendant  should  account  from  the  time 
of  assign ment.(o)(a) 

22.  In  England,  tJie  croicn  may  redeem  a  mortgage  on  an  estate  for- 
feited for  01  ime.(4) 

22  a.  In  case  of  the  mortgagor's  death,  his  heir  or  assignee  alone  can 
redeem.  And,  even  though  the  estate  be  insolvent,  this  is  no  ground 
of  objection  to  a  redemption  by  the  heirs ;  more  especially  atter  the 
lapse  of  a  long  time  from  the  mortgagor's  death,  during  which  the  cred- 
itors have  done  no  act  towards  redemption. (5) 

23.  A  parly  interested  cannot  redeem  a  mortgage,  without  paying 
the  ivhole  debt;  (but  see  sec.  18,)  and,  if  he  has  onl}'  a  partial  interest  in 
the  property,  he  will  stand  in  the  place  of  the  party,  whose  interest  in 
the  estate  he  discharges.  The  mortgagor  cannot  claim  to  have  a  part 
of  the  land  estimated  for  the  purpose  of  payment,  and  thereby  entitle 
himself  to  redeem  the  rest  by  paying  the  balance  of  the  debt.  And  the 
whole  debt  must  be  paid,  though  the  whole  or  a  pait  of  it  has  been 
separated  from  the  mortgage,  and  is  owned  by  a  different  person.  In 
carrying  into  effect  the  riglit  of  redemption,  equity  may  marshal  the 


(1)  Eaton  V.  Simonds,  14  Pick.  98. 

(2)  Jennisou  v.  Hapgood,  14  Pick.  345. 

(3)  Gibson  v.  Creliore,  i  Pick.  146. 

(4)  2  Cruise,  127. 


(5)  Smith  V.  Manning,  9  Mass.  422  ;  Elliott 
V.  Fatten,  4  Yerg.  10;  Shaw  v.  Hoadley,  8 
Blackf.  165;  Wells  i;.  Morse,  11  Verm.  17. 


(a)  A  mortgagor  may  devise  his  equity  in  lieu  of  dower.  So,  the  Probate  Court  may  as- 
sign it.  The  widow  may  then  redeem,  or  tiie  lieir,  who  may  then  eject  her  till  she  refunds. 
Wilkins  v.  French,  2  Appl.  111.  "Wiiere  one  of  several  mortgagees  was  to  have  possession 
of  part  of  the  premises  lor  life,  and  a  pecuniary  provision,  under  certain  circumstances,  not 
exceeding  a  particular  sum  ;  held,  a  tender  l)y  the  widow  to  an  assignee  of  the  husband  of  a 
sum  of  money,  as  an  indemnity  against  such  provision,  did  not  discharge  the  mortgage,  or 
give  her  a  claim  to  dower.  Ballard  v.  Bowers,  10  N.  H.  500  The  liusbandor  his  assignee 
■would  be  entitled  to  possession,  and  the  widow  to  dower,  until  a  claim  made  for  such  provi- 
sion.   Ibid. 


CHAP.  XXXI.] 


EQUITY  OF  RKDKMin'IOX,  ETC. 


419 


burden  among  the  respective  claimants,  according  to  tiieir  re.'^pective 
proportions.(l) 

21.  One  person,  having  a  partial  inlerost  in  jjropcrty  mortgaged, 
cannot  coin|,>el  other  owners  to  contribute  lor  its  redemption  ;  beeause, 
a  Ibrechjsure  n):iy  perhaps  be  ibr  their  benefit.  Jbit,  it"  he  redeem  alone, 
he  may  hold  the  whole  till  he  is  reimbursed.  He  is  an  assigjiee,  and 
stands  in  the  place  of  the  mortgagee.  So,  if"  one  of  "several  mort- 
gagees, iu  a  subsequent  mortgage,  elects  not  to  pay  his  share  in  redeem- 
ing a  prior  one;  the  others,  who  do  redeem,  have  a  prior  lien  for  the 
sum  paiti,  and  may  in  equity  compel  the  Ibrmer  to  pay  his  share,  or 
convey  his  interest  to  themselves.(2)(«) 

25,  In  England,  agreeably  to  the  maxim,  that  "he  who  will  have 
equity  must  do  equity,"  it  has  been  held,  that  a  mortgagor  cannot  re- 
deem the  mortgaged  estate,  without  paying  not  only  the  mortgage  debt, 
but  a  subsequent  bond  given  by  him  to  the  mortgagee  for  money  bor- 
rowed. But  this  doctrine  was  not  adhered  to  with  respect  to  the  mort- 
gagor himself.  It  i.s,  how^ever,  still  retained  as  against  the  heir  or  de- 
visee of  the  mortgagor  ;  for  a  bond  debt  of  the  ancestor  becomes  his  own, 
and  the  descended  estate  is  assets  in  his  hands;  and,  therefore,  be  will 
not  be  allowed  to  redeem  without  paying  it,(o) 


(1)  4  Kent,  1G2-3-4;  Calkins  v.  Munsell,  2 
Root,  3:5.1  ;  Noyes  v.  Clark,  7  Paige,  179; 
Robinson  v.  Leavilt,  7  N.  H.  97  ;  JoLnsonv. 
Candage,  31  Maine,  23;  Spring  v.  Haines,  8 
Pliepi.  126.  See  Jen  ti  ess  v.  Robinson,  ION. 
II.  215.  It  is  said,  one  mortirafror  cannot  re- 
deem an.i  take  a  couveyant-e  of  the  land,  witli- 
out  liie  consent  of  the  other.  Porter  v.  Cle- 
ments 3  Pike,  464. 

(2)  5  Pick.  152;  Messiter  v.  "Writrlit,  10, 
153;  Saunders  v.  Frost,  5  lb.  259.  See 
Brooks  t .  Harwood,  8,  497 ;  Chittenden  v. 
Barney,  1  Verm.  23 ;  Smith  v.  Kelly,  27 
ilaine.  237  ;  Hubbard  v.  Ascutney,  &c ,  20 
Verm.  402  ;  Browu  v.  Worcester,  &c.,  8  Met. 
4". 

(3)  2  Cruise.  127-134.  See  "White  v.  Hill- 
acre,  3  Y.  &  Coll.  597  ;  Grugeon  v.  Gerrard. 
4,  119:  Second,  &o.  v.   Woodbury,  2  Sliepl. 


281;  Williams  v.  Owen,  13  Sim.  597;  Aid- 
worth  V.  Robinson,  2  Beav.  287  ;  Young  t". 
English,  7  Beav.  10;  Watts  v.  Symes,  8  Eng. 
L.  &  Equ,  247  ;  Brace  v.  Duchess.  &c..  2  P. 
Wm.s.  491 ;  Gray  v.  Jenks,  3  Mas.  522;  White 
V.  Hillacre,  3  Y.  &  Coll.  608  ;  Harrison  v. 
Ferth,  Pre.  Cha.  61 ;  Edmunds  v.  Povey,  1 
Vern.  187;  Barnett  v.  Wtston,  12  Vez  130; 
Purefoy  v.  Purefoy,  1  Vern.  29  ;  Shuttluworth 
V,  Laycoek,  2  Vern.  286 ;  Margrave  v.  Lo 
liooke,  lb.  207  ;  Pope  v.  Onslow.  lb.  286 ; 
King,  1  Atk.  300 ;  Tilley  v.  Davis,  2  Y.  &  0. 
(N.  R.)399;  Roe  v.  Soley,  2  Bl.  726;  De- 
mainbray  v.  Metcaltl  Pr.  Cha.  421  ;  Cator  v. 
Ciiarlton,  Coote,  468;  Collett  v.  Miinden,  lb; 
Jones  V.  Smith,  lb  ;  Hooper,  19  Vez.  477; 
Ireson  v.  Denn,  2  Cox,  425;  Bowker  v.  Bull, 
1  Sim.  (N.)  29. 


(a)  Where  a  suit  for  foreclosure  is  brought  against  more  than  one  defendant,  it  will  not  be 
delayed  to  give  them  opportunity  of  litigating  their  own  mutual  rights;  unless  it  appear, 
upon  H  cross  bill  Bled  by  them,  that  this  is  absolutely  necessary  (or  their  protection.  Far- 
mers, Ac.  V.  Seymour,  9  Paige,  538. 

A  mortgagor  of  two  parcels  of  land,  who  conveys  one  of  them,  cannot  compel  his  grantee 
to  contribute  to  a  redemption  of  the  mortgage.  Allen  v.  Clark,  17  Pick.  47.  But  ii;  after 
such  conveyance,  together  with  a  mortgage  back  Jbr  the  purcJiase-mone}-,  the  mortgagor 
convey  the  other  parcel  to  another  grantee,  and  become  insolvent,  and  the  second  grantee 
roluau  to  contribute  to  n  redemption,  the  first  grantee,  upon  redeeming,  may  claim  an  assiga- 
luent  of  the  mortgage,  and  thus  compel  contribution.     lb. 

Morig.ige  of  two  lots  of  land.  The  right  of  redeeming  one  was  transferred  to  A,  and  the 
rigiit  ol  redeeming  the  other  to  B,  and  the  mortgagee  afterwards  released  the  former.  Held, 
B,  in  redeeming,  could  not  compel  A  to  contribute,  but  was  entitled  to  an  abatement  of  such 
proportion  ol  the  sum  due  on  the  mortgage,  as  the  value  of  A's  parcel  bore,  at  the  time  of 
making  the  mortgage,  to  the  value  of  both  parcels.     Parkman  v.  Welch.  19  Pick   231. 

If  a  mortgage  debt  is  payable  by  instalments,  and  for  nonpayment  of  the  first  of  them  the 
mortgagee  enters,  and  aaer  all  have  become  due  the  mortg.tgoi-  brings  a  bill  lo  redeem;  he 
will  be  required  to  pay  the  whole  debt,  as  the  condition  of  redemptrou.  Maim  v.  Richard- 
son, 21  Pick.  355. 

IIJ  iu  such  case,  a  part  of  the  instalments  are  uot  due,  and  the  mortgagee  refuses  to  re- 


420 


EQUITY  OP  REDEMPTION,  ETC. 


[CHAP.  XXXI. 


26.  The  same  doctrine  has  been  applied,  where  one  who  has  loaned 
money  upon  land  afterwards  takes  an  assignment  of  a  mortgage  made 
by  the  borrower.  So,  if  part  of  a  debt  is  paid,  and  more  money  bor- 
rowed upon  a  defective  security,  the  mortgagor  shall  not  redeem  with- 
out paying  the  whole  amount  due. 

27.  But  the  principle  is  not  adopted,  as  against  an  assignee  of  the 
equity  of  redemption,  or  any  subsequent  incumbrancer;  who  may  al- 
ways redeem,  without  paying  any  independent  claim  held  by  the  mort- 
gagee against  the  mortgagor. 

28.  It  has  been  said,  that,  here  one  makes  two  distinct  mortgages  of 
separate  estates,  one  of  which  proves  defective  in  title  or  value;  neither 
he,  nor  a  purchaser  of  one  of  the  estates  holding  under  him,  will  be 
alloAved  to  redeem  one,  without  redeeming  both.(l) 

29.  The  rules  above  stated,  by  which  equity  imposes  upon  a  party, 
who  seeks  its  aid  in  redeeming  a  mortgage,  terms  that  are  not  provided 
for  by  the  mortgage  itself;  have  been  said  to  be,  in  some  particulars, 
solely  matters  of  arrangement,  to  prevent  a  circuit}'  of  suits,  and  to  have 
no  foundation  in  natural  justice.  They  are  strikingh-  at  variance  with 
the  registration  system  universally  practised  upon  in  the  United  States, 
and,  chiefly  on  this  ground,  perhaps,  have  never  been  generally  adopted 
as  a  part  of  American  law.(2)(a)  In  Massachusetts,  Vermont,  New 
Jersey,  Tennessee  and  Illinois,  cases  have  occurred,  in  which  the  courts 
have  had  occasion  to  advert  to  them,  but  have  denied  their  binding 
force  in  those  States.  While  in  Maryland,  Virginia  and  Connecticut, 
they  have  been  to  some  extent  recognized  and  en  forced. (3) 

80.  In  this  covinecticm  we  may  consider  the  question,  which  has  been 
somewhat  discussed,  how  far  a  mortgage  maj-  be  made  to  operate  as 
security  for  future  advances  made,  or  liabilities  incurred,  by  the  mort- 
gagee. The  principle  is  said  to  be,  that  subsequent  advances  cannot 
be  tacked  to  a  prior  mortgage,  to  the  prejudice  of  a  bona  fide  junior 
incumbrancer;  but  a  mortgage  is  always  good  to  secure  future  loans, 
when  there  is  no  intervening  equity.  In  other  words,  where  a  mort- 
gage is  expressl}'-  made  to  cover  future  debts,  these  debts  will  be  se- 
cured by  it,  in  preference  to  the  claim  of  a  third  person,  who  takes  an- 
other mortgage  between  the  making  of  the  first  and  the  incurring  of 
the  proposed  future  debts,  with  notice,  express  or  implied,  of  the  first 


(1)  2  Cruise,  127-34. 

(2)  Loring  v.  Cooke,  3  Pick.  48. 

(3)  Lee  v  Stone,  5  Gill  &  J.  21-2  ;  2  Swift, 
186-7  ;  Scripture  v.  Johnson,  3  Conn.  213. 
But,  in  Maryland,  lacking  is  now  unknown. 
Coomi)S  V.  Jordan,  3  Bland,  330.  And  a 
mortgage  is  valid  only  fi)r  whtit  appears  upon 
the  face  of  it.  Md  L.  8"J5  ;  Hopper  v.  Sisco, 
1  Halpt  Clia.  343,  n.  ;  Loring  v.  Cooke,  3 
Pick.  48 ;  Van   Vronker  v.  Eastman,  7  Met. 


157  ;  Green  v.  Tanner,  8  Met.  411 ;  Hicks  v. 
Bingham,  11  Mass.  300;  Green  v.  Chester,  7 
Humpii.  77  ;  Lawson  v.  Sutherland.  13  Verm. 
309 ;  Frye  v.  Bank,  Ac,  1 1  lilin.  367  ;  Lee  V. 
Stone,  5  Gill.  &  John.  21-2;  xMd.  L.  825;  Ro- 
bertson V.  Camplieli,  2  Call.  362;  CliimWerlain 
V.  '1  hompson,  10  Conn.  251  ;  Orvis  v.  Newell, 
17  Conn.  97  ;  Woodson  v.  Perkins,  5  Gratt. 
345. 


ceive  them;  the  court  will,  by  special  decree,  order  that  the  case  stand  open,  the  mortga- 
gee to  retain  possession  till  they  become  due.  lb.  See  TilJinghast  v.  1  ry,  1  R.  I.  406;  Towle 
V.  Hait,  14  N.  H.  61.  The  rule  stated  in  the  text  does  not  necessarily  operate  to  debar  a 
parly  fmm  redeeming  part  ot  the  land,  because  the  right  of  redeeming  another  pari  has  been 
lost.'    Dexter  V.  Arnold.  1  Sumn.  118. 

(o)  The  doctrine  of  tichitiy  was  first  attacked  and  exploded  in  the  case  of  Gmnt  v.  U.  S. 
Bank,  1  CainesCas.  in  Er.  112  ;  in  which  Gen.  Hamilton  made  a  celebrated  argument  against 
it. 


CHAP.  XXXI.] 


P:QUITY  of  RliDKMl'TION,  ETC. 


421 


mortgiige.  But  a  mortgage  cannot  bo  enlarged  by  lacking  subsequent 
advances  lo  it  in  virtue  of  a  parol  agreement;  nor,  it  seems,  uiuler  a 
written  contract,  unless  the  subsequent  mortgagee  iius  full  notice  ol  it.(l) 
It  has  been  hi-ld,  thtit  a  mortgage  may  be  given  to  secure  future  ad- 
vances, or  as  a  geui'ial  security  tor  future  bahmces.  So,  wlien  a  mort- 
gagee lias  indorsed  bills  in  blank,  and  Uikcu  tlio  mort;^aj^«*  as  security, 
it  is  not  affected  by  subsequent  mortgages,  though  made  bd'orc  the  bills 
are  put  in  circulation.  So,  a  mortgage  is  good  to  secure  a  I'uturc  book 
account.(2)  It  is  said,(3)  the  question  of  the  validity  of  such  a  mort- 
gage may  arise  under  several  different  aspects.  One  inqiiiry  is,  what 
language  in  the  deed  itself,  or  what  evidence  independent  of  the  deed, 
is  necessary  and  suflieient  to  create  such  a  security.  Another  considera- 
tion is,  whether  the  question  is  between  the  parties  to  the  mortgage, 
or  between  the  mortgagee  and  creditors  of  the  morty"agor,  or  subsequent 

DO  O      ~  '  ^ 

incumbrancers;  also,  how  far  such  creditors  and  incumbrancers  are 
bound  by  the  registration  of  the  first  mortgage,  and  the  first  mort- 
gagee by  a  registration  of  the  second  mortgage,  in  reference  to  all  sub- 
sequent advances. 

31.  To  render  a  prior  mortgage  valid  against  subsequent  incum- 
brances, the  condition  of  the  former  need  not  be  so  comi)letely  cei'tain, 
as  to  preclude  the  necessity  of  extraneous  inquiry,  but  only  sufficiently 
definite  to  give  the  necessary  information,  with  the  exercise  of  common 
prudence  and  diligence.(4)(a) 

32.  A  mortgage  from  A  to  B,  dated  May  18,  was  conditioned  as  fol- 
lows— "  whereas  B  has  indorsed  for  A  a  note  for  $1,000,  and  has  agreed 
to  indorse  $1,000  in  a  note  or  notes,  hereafter,  when  thereto  requested;" 
if  A  shall  |)ay  said  notes,  the  deed  to  be  void.  June  16,  B  indorsed  a 
note  for  A  for  $1,000,  which  B  w^as  afterwards  obliged  to  pay.  In  No- 
vember, A  moitgaged  the  same  land  to  C,  a  bona  fide  creditor.  On  a 
bill  for  foreclosure  b}''  B  against  0,  held,  the  mortgage  was  a  valid  secu- 
rity for  the  second  note.(5) 


(1)  4  Kent,  175;  James  v.  Morey,  2  Cow. 
292  ;  lli'iitiricks  v.  llobinsoii.  2  Jolni.  Clia. 
309;  Averill  v.  Gutlirie.  8  Dana,  83;  Leeds 
V.  Ciimeron,  3  Sumn.  492  ;  Walling  v.  Aiken, 
1  M'Mul.  1  ;  Ex  parte  Hooper,  19  Yes.  477  ; 
"Walker  r.  Snediker.  1  Iluirm.  146;  Jolinson 
V.  Bowie,  2  Y  k  ("oil.  2G8;  Wellaiid  v.  Gray, 
Hi.  19:);  Watson  v.  Dieken.«,  12  Srn.  &  M. 
60S:  Craig  v.  Tappin,  2  Sandl".  Clia.  78; 
Quii)el>auj;,ctc.v.  French,  17  Conn.  129;  Tor- 
rey  v.  Bank,  .tc,  9  Paiire,  649 ;  North  v.  Cro- 
well.  11  N.  II.  251;  McDaiiiela  r.  Colvin,  16 
Verm.  300;  Collins  v.  Carlile,  13  Illin.  254; 
Bank  v.  Finch,  &c.,  3  Barb.  Clia.  297  ;  Lewis 
V.  De  Forest,  20  Conn.  427  ;  Mix  v.  Cowles, 
20  Conn.  420  ;   Uawkiiis  v.  May,  12  Ala.  673  ; 


Kramer  V.  Bank,  &c.,  15  Ohio,  253  ;  Gordon  v. 
Graliam,  2  Equ.  Cas.  Abr.  598;  Truscolt  v. 
King,  6  Barb.  346;  Stuyvesant  v.  Hall,  2 
Barb.  Cb.  151;  Bank,  &c.  v.  Christie,  8  CI. 
&  Fin.  214. 

(2)  Bank,  ,to.  r.  Finch,  3  Barb.  Ch.  293; 
Burdett  v.  Clav,  8  B.  Mon.  287  ;  McDaniels 
V.  Colvin,  16  Verm.  300. 

(3)  1  Hill  on  Mort^'.  211 

(4)  Pettibono  v.  Griswold,  4  Conn.  158  ;  St. 
Andrews,  &c.  v.  Tompkins.  7  John.  Ch.  14  ; 
Garber  v.  Henry,  6  Watts,  57  ;  Hart  v.  Clialk- 
cr,  14  Conn.  77. 

(5)  Hubbard  v.  Savage,  8  Conn.  215.  See 
Smith  V.  Prince,  lb.  472. 


(a)  The  condition  of  a  mortgage  was,  to  pay  a  debt  due  by  note,  dated  May  10,  1834,  on 
demand,  with  interest.  Held,  invalid  ajrainst  a  sulisequent  mort^'ageo.  Hart  v.  Chalker, 
14  Conn  77.  Si'e,  also.  Yauneter  v.  Yanneti-r,  3  Gratt.  148;  Spader  v.  Lawler,  17  Ohio, 
371.  \  mortgage,  conditioned  to  pay  all  notes,  which  the  mortgagee  may  give  or  indorse 
for  the  mortgaifor,  and  all  receipts  which  he  may  hold  against  him,  is  void  against  creditors. 
Pettibone  v.  Griswold,  4  Conn.  153.  So,  a  mortgage  conditioned  to  indemnify  the  mortgagee 
against  a  certain  note  indorsed  by  him,  and  all  other  notes  thereaiter  indurseii  by  him,  for 
the  mortgagor's  benefit,  not  e.vcoeding  a  certain  sum,  is  void,  with  respect  to  the  latter  notes, 
against  a  subsequent  incumbrancer.     Shepard  v.  Shopard,  6  Cou.i.  37. 


422 


EQUITY  OF  REDEMPTION,  ETC. 


[CHAP.  XXXI. 


33.  Condition  of  a  mortgage  from  A  to  B  that,  if  A  shall  pay  B  the 
sums  to  be  advanced  him  by  B,  according  to  an  agreement  mentioned 
in  a  certain  bond  of  even  date  from  A  to  B ;  and  fulfil  every  other 
agreement  mentioned  in  said  bond,  and  build  tlie  bridge  therein  men- 
tioned, and  do  all  other  things  contained  therein  ;  the  deed  and  bond 
to  be  void.  A  afterward.s  mortgages  to  C.  Held,  the  mortgage  to  B 
should  stand  as  security  for  advances  made  after  the  mortgage  to  C.(l) 

34.  A  mortgaged  to  B,  conditioned  nominally  to  secure  a  certain 
specified  sum,  but  in  reality  to  secure  different  suras  due  at  the  time, 
advances  afterwards  to  be  made,  and  liabilities  to  be  incurred  to  an  un- 
certain amount.  Held,  although  the  misrepresentation  of  the  true  con- 
dition subjected  the  mortgage  to  suspicion,  yet,  as  it  proved,  on  in- 
quiry, to  be  a  fair  transaction,  the  mortgagee's  claim  was  good,  not 
only" for  debts  due  at  the  time,  but  for  those  subsequently  incurred  upon 
the  faith  of  the  mortgage,  as  against  all  persons  except  those  injured 
and  deceived  by  the  misrepresentation  ;  but  that  it  should  not  hold  to 
secure  advances,  made  after  notice  of  a  subsequent  conveyance  b}^,  or 
incumbrance  against  the  mortgagor.(2) 

35.  A  gave  to  B  his  note,  secured  b}^  mortgage,  to  indemnify  B  from 
any  loss  arising  from  indorsements  subsequently  to  be  made  by  B  for 
A,  which  were  made  accordingl3^  Held,  such  note  was  valid  against 
creditors  of  A,  whose  claims  accrued  after  the  indorsement.(3)(a) 

3H.  In  Maryland,  the  validity  of  a  mortgage  to  cover  future  advances 
seems  to  be  recognized,  though  not  distinctly  decided.  So  in  South 
Carolina.  But  in  New  Hampshire,  a  late  statute  seems  to  render  it 
Yoid,(4)  The  court  in  Massachusetts  have  remarked, (5)  that  a  stipula- 
tion in  a  mortgage,  for  the  security  of  future  advances  and  responsi- 
bihties,  may  have  a  fraudulent  aspect,  or  maj^  be  satisfactorily  ex- 
plained, according  to  the  attending  circumstances.  A  mortgage  made 
for  this  consideration  alone  might  be  void  against  creditors,  as  tending 
to  facilitate  collusion,  and  enabling  the  mortgagor  to  get  credit  on  his 
propert}'  without  notice  of  the  incumbrance.  But,  where  the  object  is 
to  secure  an  existing  demand,  the  addition  of  a  clause,  securing  future 
advances,  does  not  necessarily  avoid  the  mortgage.  These  remarks  are 
evidently  directed  to  the  point,  whether  such  a  mortgage  is  void  for  the 


(1)  Crane  v.   Deming,   7   Conn.  387.     See 
Booth  V.  Barnum,  9  lb.  286. 

(2)  Shirras  v.  Caig:,  7  Cranch,  34,  50-1. 

(3)  Gardner  i;  Webber,  17  Pick.  407. 

(4)  Union,  &c.  v.  Edwards,  1  Gill  &  J.  363  : 
Clagett    V.  Salmon,   5  lb.   314;   1   M'Cord's 


Cha.  265;    X.   H.  L.    1829,   532;    Rev.  St. 
245. 

(5)  Badlam  i;.  Tucker,  1  Pick.  398;  Atkin- 
son V.  Maliijg,  2  T.  R.  402.  See  7  Yin.  Abr. 
52-3. 


{a)  A  being  indebted  to  B,  and  B  being  also  liable  for  him  as  surety,  A  gives  a  mortgage 
to  secure  a  note,  covering  the  whole  amount  of  debt  and  liability ;  and  tiie  next  day,  be- 
fore any  payment  by  B,  as  surety,  makes  an  assignment  for  benefit  of  his  creditors.  Held, 
the  mortgage  was  valid,  so  far  as  to  secure  the  debt  due  to  B.  Sanford  v.  Wheeler,  13 
Conn.  165. 

Mortgage  to  secure  a  note  for  $500,  such  note  being  given  solely  on  account  of  the  mort- 
gagee's suretyship  for  that  amount,  upon  which  he  afterwards  paid  the  debt.  Held,  as 
against  a  subsequent  mortgagee,  the  mortgage  was  invalid.  North  v.  Belden,  13  Conn.  376. 
Mortgage  to  secure  A,  the  mortgagee,  as  indorser  of  certain  notes.  When  tlicse  fell  due, 
they  were  renewed  by  giving  others  witli  different  names,  but  the  original  liability  of  A  re- 
mained undiscliarged,  no  new  credit  was  given,  and  he  finally  paid  liie  new  notes.  Held, 
the  morti/aire  was  still  valid.  Pond  v.  Clark,  14  Conn.  334,  (overruling  Peters  v.  Goodrich, 
3  Conn.  146.) 


CHAP.  XXXI.]  EQUITY    OF  RKDKMrriON,   ETC.  423 

whole ;  not  whether  it  is  effectual  to  cover  the  iuture  aclvance.s.(a)  In 
another  case,  Judge  Story  reinark.>^,(l)  that  a  conveyance  may  be  valid 
in  ])oint  of  law,  although  given  tor  future  ailvance.s,  if  it  be  bonajide, 
and  for  a  valuable  consideration ;  that  this  will  hardly  be  denied,  and 
lias  been  most  solemnly  settled. (Z*) 

87.  With  regard  to  the  time  within  whith  a  mortgage  shall  be  re- 
deemed, although  no  preci.se  period  of  limitation  is  fi.\ed,ljy  law,  and 
matters  in  equity  are  governed  by  the  course  of  the  court;  yet,  in  analogy 
to  the  statute  of  liinitation.s,  uninterru])ted  possession  by  the  mortgagee 
for  twenty  years  will  raise  a  presumption,  that  the  right  of  redeeming 
is  abandoned,  more  especially  as  against  the  heir  of  the  mortgagee.(c) 

(I)  De  Wolf  w.  Harris,  4  Mas.  530. 

(rt)  In  New  Hampshire,  notwithstanding  the  statute  above  referred  to,  (sec.  3(5,)  such 
mortfTHsre  is  vali.l  for  Uie  amount  of  present  indebtedness.  3  Sumn.  488 ;  New  Hampshire, 
&L-.  V.  VVillnrd.  10  N.   U.  210. 

(/')  fri  a  late  case  in  the  same  State,  a  note,  secured  by  mort,G;agc,  duly  recorded,  was 
given  by  a  (inn  to  the  plainliirs,  a  bank,  who  at  the  same  time  j^ave  tlie  mortgagors  a  wri- 
ting, setting  fortii  that  the  note  was  held  as  collateral  for  other  liabilities  of  the  mortgagors 
to  the  i)anlc,  and  tliat  the  note  and  mortgage  were  to  remain  for  said  purposes,  .so  long  as 
the  bank  should  hold  an}'  note  against  the  mortgagors,  and  so  long  as  they  should  be  under 
any  liabilities  to  the  bank;  but  this  instrument  was  not  recorded.  Held,  the  mortgage  was 
not  Iraudnlent  as  against  sui)sequent  purchasers;  that  new  notes,  given  the  bank,  whether 
in  renewal  of  the  original  ones  or  not,  were  covered  by  tlio  mortgage,  though  a  third  person 
had  become  a  partner  with  the  mortgagors,  and  the  new  notes  were  made  or  indorsed  in  the 
name  of  the  new  firm.     Commercial,  &e.  v.  Curmingham,  24  Pick.  270. 

(c)  Tt  will  be  seen  that  the  kgol  lime  of  liaiitation  is  changed  in  many  of  the  States. 
The  rule  in  equilj'  varies  accordingly.  See,  as  to  the  effect  of  lapse  of  time  in  equity, 
Mitchell  v.  Thompson.  I  M'Leaii,  103;  Piatt  v.  Vatlier,  lb.  164;  Scott  v.  Evan.s,  lb.  486  ; 
Cook  V.  Oolyer,  2  B.  Monr.  78;  De.xter  v.  Arnold,  3  Sumn.  152  ;  Wells  v.  Mor.se,  11  Verm. 
9,«  Humbert  v.  Rector,  &c.,  24  Wend.  587. 

In  England,  by  St.  3  &  4  Wm.  IV,  ch.  27,  sec.  28,  the  time  of  redemption  is  now  limited 
to  twenty  years  next  after  the  mortgagee's  taking  possession ;  or  from  any  written  acknow- 
ledgment given  by  him  to  the  mortgagor  of  the  right  of  the  latter,  if  such  exists.  1  Steph. 
28 1.     See  Hodges  v.  Croydon.  &c.,  3  Beav.  86  ;  Du  Vigier  v.  Lee,  2  Hare,  326. 

It  has  been  said,  that '"  the  right  to  foreclose  and  the  right  to  redeem  are  reciprocal  and  com- 
mensurable." Canefman  v.  Sayre,  2  B.  Monr.  206.  So,  aKso,  in  the  case  of  a  mortgagor 
coming  to  redeem,  that  court  (equity)  has,  by  analogy  to  the  statute  of  limitations,  whicli 
takes  away  the  right  of  the  plaintiff  after  twenty  years'  adverse  possession,  fixed  upon  that 
as  tlie  period,  after  forfeiture  and  possession  lalcen  by  the  mortgagee,  no  interest  having 
been  paid  in  the  meantime,  and  no  circumstances  to  account  lor  the  neglect  appearing, 
beyond  which  a  right  of  redemption  shall  not  be  favored.  In  respect  to  the  mortgagee,  who 
is  seeking  to  foreclose,  the  general  rule  is,  that  where  the  mortgagor  has  been  permitted  to 
ret  in  po.ssession,  the  mortgage  will,  after  a  length  of  time,  be  presumed  to  have  been  dis- 
charged, l>y  payment  ol  the  money  or  a  release,  unless  circumstances  can  be  shown  suffi- 
ciently strong  to  repel  the  presumption, — as  payment  of  interest,  a  promise  to  pay,  an 
acknowledgment  by  the  mortgagor  that  the  mortgage  is  still  existing,  and  the  like." 
i lushes  V.  Kdwards,  9  Wheat.  497-8  ;  ace.  Ohristophei-s  v.  Sparke,  2  Jac.  &  W.  235 ;  Gates 
V.  Jacob,  1  B.  Mon.  309. 

The  following  remarks  are  made  by  the  court  in  Massachusetts:  "A  question  has  been 
sometimes  raised,  whether  the  doctrine  of  presumption,  arising  from  the  lapse  of  time  and 
total  neglect  to  take  any  measure  to  enforce  a  claim,  could  properly  be  applied  to  the  case 
of  a  mortj^au'c  of  real  estate;  and,  in  some  of  the  earlier  Eniilish  cases,  the  doctrine  was 
advanced,  that  the  common  law  presumption  applicable  to  bonds,  judgments,  &c.,  arising 
from  a  delay  of  tsventy  years  to  enforce  the  same,  did  not  apply  in  the  case  of  a  mortgage; 
as  in  such  cases  the  legal  estate  was  in  the  mortgagee,  and  the  mortgagor  was  a  mere 
tenant  at  will,  and  his  po.ssession  was  therefore  the  possession  of  the  mortgagee.  But  this 
doctrine  was  repudiated  by  Lord  Thiirlow  in  the  case  of  Trash  v.  White,  (3  Bro.  C.  C.  289,) 
and  l>y  the  Mii.ster  of  tiie  Rolls  in  Christophers  v.  Sparke,  in  very  strong  language ;  and  tlie 
cases  of  debts  secured  I)}'  in'  rtgages  are  placed  on  the  same  footing  with  other  demands, 
and  held  liable  to  be  defeated  by  the  same  presumption,  arising  from  lapse  of  time  and 
laches  of  tiie  mortgagee." 

The  effect  of  long-continued  poR.scs.«ion,  as  has  been  seen,  upon  the  rights  of  mortgagee 
or  mortgagor,  has  been  usually  made  to  depeml  upon  general  principles  or  analogies.  It 
b»s  been  a  point  somewhat  discussed  and  variously  decided,  whether  a  general  siattUe  of 


424 


EQUITY  OF  REDEMPTION,  ETC. 


[CHAP.  XiXI. 


So  where  there  has  been  a  decree  to  redeem  and  account,  the  lapse  of 
twenty  years  after  such  decree,  the  mortgagee  being  in  possession,  will 
be  a  bar  to  redemption.  But  the  same  disabilities — coverture,  infancy, 
imprisonment,  and  absence  from  the  country — which  make  an  excep- 
tion to  the  rule  of  limitation  at  law,  will  also  save  an  equity  of  redemp- 
tion from  being  barred  in  equity.  But  not  a7i  absconding,  which  is  an 
avoiding  or  retarding  of  justice.  And  in  equity,  as  at  law,  where 
twenty  years  had  elapsed  in  the  life  of  the  ancestor,  no  subsequent  dis- 
ability in  the  heir  will  take  the  case  out  of  the  rule  of  twenty  years' 
limitation.  Where  a  bill  for  redemption  itself  shows  that  the  mort- 
gagee has  had  possession  above  twenty  years,  it  has  been  held,  (though 
since  denied,)  that  the  latter  need  not  plead  the  limitation,  but  may 
demur  to  the  bill.  In  equity,  as  at  law,  in  case  of  disability,  the  party 
will,  it  seems,  be  allowed  not  twenty  years,  but  only  ten  years,  after  its 
removal. (1) 

88.  The  limitation  above  referred  to,  being  founded  chiefly  upon  the 
difficulty  of  a  mortgagee's  accounting  after  long  continued  possession, 
is  not  applicable,  where  an  account  has  been  settled  within  twenty  years. 

39.  Thus,  after  there  had  been  four  descents  on  the  part  of  the  plain- 
tiff, and  three  on  the  part  of  the  defendant,  but  the  mortgagee,  within 
twentv  years,  upon  a  bill  for  foreclosure,  had  made  up  an  account;  a 
redemption  was  decreed.  So,  where  there  had  been  a  stated  account, 
with  an  agreement  to  turn  interest  into  principal — although  the  mort- 
gagee had  been  in  possession  forty  years.  So,  where  within  twelve 
years  the  clerk  of  the  mortgagor's  solicitor  had  settled  an  account  of 
what  was  due,  in  order  to  pay  off"  the  mortgage,  though  no  farther 
proceedings  were  had. (2) 


(1)  Gordon  v.  Hobart,  2  Sumn.  401;  Ag- 
gasv.  Pickerell.  3  Atk.  225;  2  Cruise.  135-6; 
Phillips  V.  Sinclair,  7  Shepl.  269 ;  1  Ch.  Rep. 
286;  Wiiite  ?;.  Ewer,  2  Vent.  340:  AslUon 
V.  Milne,  6  Sim.  369  ;  St.  John  v.  Turner.  2 
Vern.  418;  Cornel  v.  Sykes,  1  Ch.  R.  193; 
Knowles  v.  Spence,  1  Ab.  Equ.  315  ;  Jenner 
V.  Tracy,  3  P.  Wnis.  287,  n.:  Belch  v.  Harvey, 
3  P.  Wms.  287,  n  ;  IN.  J.  R.  C.  412  ;  Dex- 
ter V.  Arnold,  3  Sumn.  152  ;  Bonham  v.  New- 
comb.  2  Ventr.  364;  Spring  v.  Haines,  8 
Shepl.  126;  Bor.st  v.  Boyd,  3  Sandf.  Ch.  507; 
Davis  V.  Evans,  5  Ired.  525;  Slee  v.  Man- 
hattan, &c.,  1  Paige,  56;  Bond  v.  Hopkins,  1 
Sch.  &  Lef.  429 ;  Martin  v.  Bovvker,  19  Verm. 
526  ;  McDonald  v.  Sim.s.  3  Kelly,  383  ;  Field 
V.  Wilson,  6  B.  Mon.  479 ;  Gates  v.  Jacob.  1, 
309;  Giles  w.  Bareraore,  5  John.  Ch.  552; 
Dunham  v.  Minard,  4  Paige,  443  ;  Cook  v. 
Arnham,  3  P.  Wms.  283  ;  Newcomb  v.  St. 
Peter's,  &c.,  2  Sandf.  Ch.  636;  Farrow  v. 
Farrow,  6  B.  Mon.  482 ;  Evans  v.  Hofifman, 


1  Halst.  Ch.  354;  Morgan  v  Davis,  2  Harr. 
&  Met.  18  ;  Cook  v.  S  iltan,  2  Sim.  &  St.  154; 
Dowling  V.  Ford,  11  Mees.  &  W.  329;  Ben- 
nett V.  Cooper,  9  Beav.  252 ;  Noyes  v.  Stur- 
divant,  6  Sliepl.  104;  Murray  v.  Fishback,  5 
B.  Mon.  403. 

(2)  1  Sumn  109;  Procter  v.  Cowper.  2 
Vern.  377  ;  Conway  v.  Shrimpton,  5  Bro. 
Pari.  187  :  Barron  v.  Martin,  19  Ves.  327  ;  2 
Crui.se,  108;  Hydev.  Dallaway,  2  Hare,  528; 
Howell  V.  Price,  Gilb.  106;  Dallas  v.  Floyd, 
6  Sim.  379;  Palmer  v.  Eyre,  6  i-lng.  L.  &  Eq. 
355;  Crooker  v.  Jewell,  31  Maine,  3oQ; 
Harsand  v.  Hardy,  18  Ves.  455  ;  Fairfax  v. 
Montague,  12  Ves.  84;  Barron  v.  Martin, 
Coop.  189;  Palmer  v.  Jackson,  5  B.  P.  C. 
281  ;  Lucas  v.  Dennison,  13  Sim.  584; 
Batchelor  v.  Middleton,  6  Hare,  75;  Smart 
V.  Hunt,  4  Ves.  478  n  ;  Hardy  v.  Reeves,  lb. 
480;  Trulock  v.  Robey,  12  Sim.  402;  Cal- 
kins V.  Calkins,  3  Barb.  305 ;  Jackson  v. 
Slater,  5  Wend.  295. 


limitation,  as  such,  can  be  relied  on  by  way  of  formal  plea  in  case  of  mortgage ;  that  is, 
whether  the  possession  of  one  party  can  be  considered  adverse  to  the  otlier.  In  England, 
late  statutes  (as  has  been  seen  supra,  see  also  Sts.  7  Wra.  IV  &  1  Vict.,  c.  28)  establish  definite 
periods  of  limitation  for  .suits  of  this  description,  and  thereby  place  such  suits  on  the  same 
footing  with  other  actions  relating  to  real  property.  But  in  tlie  United  Slates,  where,  in 
general,  no  such  statutes  exist,  the  question  still  remains  open,  whether  mere  lapse  of  time 
can  be  set  up  as  a  statutory  bar  in  cases  not  included  witiiin  the  specific  provisions,  iiere- 
after  to  be  mentioned,  for  foreclosure  and  redemption.  Hadle  v.  Healej',  7  Ves.  &  B.  536 ; 
Bailey  v.  Carter,  7  Ired.  Equ.  282  ;  Bacon  v.  Mclntire,  8  Met.  87  ;  Coates  v.  Woodworth,  13 
lUiu.  654;  Fouwick  v.  Macey,  1  Dana,  279;  Dexter  v.  Arnold,  2  Sumn.  109. 


CHAP.  XXXI.j 


EQUITY  OF  RKDKMrXION,   KTC. 


425 


40.  l7pon  a  similar  principle,  any  deliberate  act  of  tlio  niDrtgagee, 
doiu!  witliin  twenty  years,  by  which  he  recognizes  the  exislonee  of  the 
mortgage  as  such,  will  prevent  the  equity  from  being  barred  by  lapse 
of  time,  either  in  liivor  of  the  mortgagee  or  one  claiming  under  him. 
Thus,  when^  a  niortgagec,  twenty-three  years  after  the  mortgage,  made 
a  will  ilevising  that,  if  the  mcjrtgage  should  be  redeemed,  the  .money 
should  go  in  a  certain  way  ;  and  sixteen  years  after  the  wtll;  the  mort- 
gagor being  dead,  his  heir  brought  a  bill  to  redeem  ;  a  redemption  was 
decreed.     But  j)arol  evidence,  it  seems,  is  insuflicient.(l) 

41.  So,  an  acknowledgment  by  the  mortgagee,  in  an  answer  in 
equity,  that  the  mortgage  still  sujbsists  as  such,  is  sullicient  to  ))reserve 
the  right  of  redemption  from  being  barred  by  lapse  of  time.  But  the 
acknowledgments  of  a  mortgagee,  made  after  he  has  transferred  his 
interest,  will  not  bind  a  purchaser  without  notice.(2)('/) 

42.  Although  the  rule  above  stated,  as  to  the  extinguishment  of  an 
equity  of  redemption  by  lapse  of  time,  is  well  established,  yet  it  is  said, 
the  relation  between  mortgagee  and  mortgagor  is  so  far  analogous  to 
that  of  trustee  and  ce-^tid  que  trust,  that  the  possession  of  either  ))arty  is, 
as  to  the  other,  amicable,  not  adverse,  unless  the  former  show  an  une- 
quivoeal  intent  to  the  contrary, — (see  sec.  87,  n.  h ;)  and  therefore,  the 
statute  of  limitations  does  not  run  against  the  party  out  of  possession  : 
that  a  mortgagor  cannot  disseize  the  mortgagee.  So,  even  where  a  mort- 
gagee attempts  to  convey  an  absolute  title,  tliis  is  no  disseizin  of  the 
mortgagor,  but  passes  merel\^  a  defeasible  estate.(3) 

43.  A  court  of  equity  will  not  £iid  a  mortgagor  in  redeeming  his 
estate,  where  such  redemption  would  be  a  violation  of  good  faith  on 
his  part,  and  an  injury  to  the  mortgagee,  who  has  relied  upon  his  state- 
ments and  promises. 

44.  A,  a  mortgagor,  encouraged  B  to  purchase  the  mortgage  from 
the  mortgagee,  C;  saying  that  the  land  was  not  worth  more  than  the 
debt,  and  that  he  would  never  redeem.  B  purchased  the  mortgage, 
and  made  expensive  imj)rovements  upon  the  land.  Held,  A  should 
not  be  allowed  to  redeem. (4)(i) 

45.  With  regard  to  the  terms  upon  which  a  mortgagor  may  redeem 
his  estate,  or  the  respective  claims  and  allowances  between  him  and  the 


(1)  OnJe  V.  Smith,  Sel.  Cas.  in  Chan.  9; 
TIf  yi-r  I'.  Pruyn,  7  Paige,  465  ;  Dexter  v.  Ar- 
uold.  3  Sumn.  152. 

(2)  Dexter  v.  Arnold,  2  Suran.  109;  3 
Mur.  218. 


(3)  Fen  wick  v.  Macey,  1  Dana,  279  ;  Dex- 
ter V.  Arnold,  2  Sumn.  109. 

(4)  Fay  v.  Yaieniine,  12  Pick.  40. 


(a\  The  question  has  been  raised,  whether  even  the  debt  itself  which  is  secured  by  mort- 
gage, might  not  be  tliereby  saved  from  the  operation  of  the  statute  of  limitations,  by  wiiich 
it  would  otherwise  be  barred ;  and  the  prevailing  doctrine  seems  to  be,  that  the  claim  upon 
the  personal  security  continues  as  long  as  that  upon  the  land  mortgaged  ;  altiiough  in 
Massachu-solts  a  ditlerent  rule  has  been  adopted.  But  in  that  State  an  action  may  be  main- 
tained upon  the  mortgage,  notwithstanding  the  lapse  of  a  period  of  time,  sufficient  to  bar 
the  debt,  if  it  stood  alone.  The  debt  is  said  to  remain,  although  the  statute  of  limitations 
may  discharge  the  remedy  >ipon  the  note.  But  the  non-production  of  the  personal  security, 
in  connoction  with  great  lapse  of  time,  may  bar  a  suit  to  recover  the  land  upon  the  mort- 
gage. Almy  v.  Wilhur,  2  W.  k  M.  371  ;  Brocklehurst  v.  Jessop,  7  Sim.  43S  ;  Dowling  v. 
Ford,  11  Moes.  &  W.  329;  Balch  v.  Onion,  4  Cush.  559;  Bennett  v.  Cooper,  9  Beav. 
252;  Crane  v.  Paine.  4  Cush.  483;  Merrills  v.  Swift,  18  Conn.  257;  Elkins  v.  Edwards,  8 
Geo  325;  Inches  v.  Leonard.  12  Mas.i.  379. 

(b)  But  a  mortgagee  will  not  lose  his  right  of  strict  foreclosure,  by  a  mere  promise  to 
give  time  to  the  mortgagor  to  redeem.     Dauforth  v.  Roberts,  7  Shepl.  367. 


426  EQUITY  OF  REDEMPTION,  ETC.  [CHAP.  XXXI. 

mortgagee,  the  general  principle  is,  that  a  mortgagee  in  possession  is  a 
steward  or  hailijf  of  the  mortgagor,  without  a  sular}',  and  accountable 
to  him  for  all  the  profits  of  the  land.  So,  also,  is  an  assignee  of  the 
mortgagor  or  a  subsequent  mortgagee.  In  general,  however,  he  is  not 
responsible  for  all  that  might  have  been  made  from  it,  but  only  for  the 
actual  receipts ;  unless  guilty  of  some  gross  neglect  or  wrong,  as  by 
rejecting  a  good  tenant  or  admitting  an  insufficient  one  ;  nor  is  he  sub- 
ject to  any  account,  unless  the  mortgage  is  redeemed. (1) 

46.  But  where  the  mortgagee  enters  before  condition  broken,  it 
seems  the  law  will  hold  him  to  a  very  strict  account  of  the  I'ents  and 
prcjfits,  such  entry  being  regarded  as  a  harsh  proceeding,  contrary  to 
the  intention  of  the  transaction,  and  unwarranted  by  any  default  ot  the 
mortgagor.  In  ^lassachusetts  and  Maine,  the  mortgagee,  in  such  case, 
shall  account  for  the  clear  rents  and  profits. (^I) 

47.  If  it  be  proved,  that  the  land  was  let  by  the  mortgagee  for  a 
certain  rent,  it  will  be  presumed  that  it  was  leased  lor  the  whole  time 
on  the  same  terms,  unless  the  contrary  be  shown.  And,  if  he  has  kept 
no  account  of  the  rents,  he  is  chargeable  with  what  he  may  be  pre- 
sumed to  have  received  ;  and,  if  he  himself  occupy,  with  an  occupation 
rent.     But  he  is  not  chargeable  with  interest  on  the  rents.(8) 

48.  If  the  mortgagee  either  enters  on  the  land,  but  allows  the  mort- 
gagor to  take  the  profits,  or  permits  him  to  use  the  mortgage  for  keep- 
ing off  other  creditors,  he  will  be  held  accountable  for  the  profits.  But 
a  first  mortgagee,  who  enters  for  breach  of  condition,  but  allows  the 
mortgagor  to  remain  in  possession,  without  accounting  for  rents  and 
profits,  is  not  himself  liable  thus  to  account,  though  he  entered  tor  the 
pur|)ose  of  preventing  an  attachment  of  the  crops  by  creditors  of  the 
mortgagor.(4) 

49.  If  the  mortgagee  assign  his  mortgage,  he  is  answerable  for  the 
profits,  both  before  and  after  the  assignment.  And.  an  assignee  cannot 
excuse  himself  from  accounting,  by  setting  up  an  adverse  title.(5)(a) 

50.  The  mortgagee,  in  general,  can  claim  no  compensation  for  his 
own  trouble  in  receiving  tlie  rents,  and  even  a  special  agreement  there- 
for will  be  disallowed.  But,  for  the  necessarj'  services  of  an  agent,  he 
may  have  an  allowance  ;  and  in  Massachusetts  he  is  usually  allowed  a 
commission  of  five  per  cent,  for  his  own  trouble,  though  there  is  no 
fixed  rule  upon  the  subject,  and  he  is  not  restricted  to  this  per  ceut- 

(1)  1  Vern.  45  ;  Gould  v.  Tancred,  2  Atk.  i  (2)  Mass.  Rev.  St.  635  ;  Me.  lb.  553  ;  Ruby 
534  ;  1  Abr.  Equ.  328  ;  Hogan  v.  Stone,  1  '  :;.  Abyssinian,  &c.,  3  Sliepl.  306. 
Alab.  N.  S  496  ;  Ruc-kman  v.  Astor,  9  Paige,  |  (3)  Sel.  Cas.  in  Cliy.  63  ;  Dexter  v.  Arnold, 
517  ;  Portland  &e.  v.  Fox,  1  Appl.  99;  Cliol-  2  Sumn.  109;  1  Ala.  (N.  S.)  496;  Lloyd  v. 
mondeley  v.  Clintou,  2  Jac.  &  W'.  179 ;  Moore  Mason,  2  My.  &  C.  487  ;  Eeare  v.  Prior,  6 
V.  Dtgraw,  1  Halst.  Cli.  346;  Beare  v.  Prior,    Beav.  183. 

6  Beav.  183  ;  Trulock  v.  Robey,  15  Siin.  265;  (4)  Coppring  v.  Cooke,  1  Vern.  270  ;  Cliap- 
Holabird  V.  Burr,  17  Conn.  556;  Kellog  v.  '  man  v.  Tanner,  lb.  267;  Charles  v.  Dunbar, 
Rockwell,    19,    44G ;    Bank,   &c.   v.   Rose,   1  '  4  Met.  498. 

Strobl).  Equ  257;  Tennentv.  Dewees,  7  Barr,         (5)  1  Abr.  Equ.  328;   Gordon  v.  Lewis,  2 
305;    Walton  v.  Williington,  9  Miss.   549  ;  j  Sumn.  143. 
Bennett  v.  Buttervvortli,  12  How.  367.  I 


(a)  After  a  decree  of  foreclosure,  a  mortgagee  is  not  liable  to  account  for  subsequent  rents, 
at  law  ;  nor  before,  unless  allowed  by  tlie  master  in  tai<iiig  bis  account.  Whetiier  in  equity, 
gu.  Cliapman  v.  Smitli,  9  Verm.  153.  In  New  York,  be  is  thus  liable.  Ruckman  v. 
Astor,  9  Paige,  517. 


CHAP.   XXXI.] 


EQUITY  OF  RKDKMITION',   V.TC. 


427 


afe.(l)  But  if  lie  occuj>y  liinisi'Kj  he  Flmll  not  liavo,  lor  liiscarr  ol  ihu 
cstato   any  commission  on  the  rent  wiili  which  he  is  v\iur^f'i\.{2){u) 

ol.  A  morli^-igce  shall  ae.coiint  for  all  loss  by  gross  negligence  or 
wilAiI  default,  in  l)a(l  cultivation  and  omission  to  repair. 

oJ.  So  also,  he  shall  aecount  for  ?/.•(/«/<•/ eom mi tteil  by  him;  as,  for 
pulling  down  cottages.  But  the  English  doetrino  of  wa.slu  is  .>3ui)ject  to 
the  same  modifications  as  between  mortgagor  and  mortg.tgec,  which 
Ikivc  already  been  stated  in  relation  to  landlord  and  tenant.  Sec  al.so 
ch.  80,  sec.  35.(3) 

53.  The  mortgagee  shall  not  be  required  to  account  for  the  proceeds 
of  improvements  made  by  himself.(4) 

54.  The  mortgagee  will  be  allowed  for  all  necessary  rcj^airs,  and  for 
ihc  expenses  of  defending  the  title  to  the  land,  both  of  which  claims 
shall  bear  interest  ;(/*)  and  he  will  be  allowed  for  all  nece.s.sary  repairs 
and  betterments,  though  the  expense  exceed  the  rents  and  profits.  So 
for  taxes,  if  |iaid  by  necessity. (5) 

00.  He  will  not  be  allowecl,  in  general,  for  the  clearing  of  \vild 
lands,(c)  nor  lor  any  ornamental  improvements,  or  new  erections,  unless 
permanently  benclieial,  or  absolutely  necessary  for  the  uj)holding  of 
the  estate  ;  as  in  ease  of  an  aqueduct,  requisite  lor  supplying  the  prem- 
ises with  water.  Nor  will  he  be  allowed  for  insurance,  unless  eit'eeted 
at  the  mortgagor's  request.  It  is  said,  however,  thai  there  is  no  inflexible 
rule  on  this  subject,  but  the  question  of  allowance  is  in  the  discretion  of 
the  court,  subject  to  the  particular  facts  ol  each  case.  The  mortgagee 
will  not  be  permitted  to  make  improvements,  which  vvill  cripple  the 
right  of  redemj)tion.((3) 

5(i.  In  Maryland,  a  mortgagee  is  allowed  for  necessary  repairs  and 
permanent  improvements.(7) 


(1)  ifoore  V.  Cable,  1  John.  Clia.  335 ;  2 
Mar.  339;  Gibson  v.  Cit.-li()rc.  5  Pick,  146; 
Clark  t'.  Robbins,  6  Pima,  350;  Adams  v. 
Brown,  Hnrr.  Rep.  (May,  '51)  p.  38. 

(2)  Tucker  v.  Bnfluiu,'  IG  Pick,  46;  Eaton 
V.  Simoiida.  14,  98. 

(3)  (livens  v.  M'Calmont,  4  Watts,  460  ; 
Bland.  22  n. ;  Sandon  v  Hooper,  6  Beav.  246. 

(4)  Moore  v.  Cable,  1  Jt>iiii.  Cha.  385. 

(5i  2  Sumn.  125,  6,  143;  Gotfrev  v.  Wat- 
son, 3  AtK.  518;  R.-ed  v.  Reed,  10  Pick.  398; 
Mix  V.  Hiitcbkiss.  14  Conn.  32.  See  Thorney- 
crofi  I'  Crockett,  16  8im.  445;  itcConnel  i'. 
Holobiisi),  11  Illin.  61  ;  Marim-,  &e.  v  Biay."*, 
4  Harr.  .t  J.  343  ;  Arnold  v.  Foot,  7  B.  Mon. 
66 ;    Pugo  V.  Foster,  7  N.  II.  392  ;  Dobson  r. 


Land,  14  Jur.  288 ;  "White  v.  Brown,  2  Cnsh. 
412.  Pellibone  v.  Stevens,  15  Conn.  19; 
Lewis  V.  De  Forest,  20  Conn.  427;  St.  8  &  9 
Vict.  c.  56. 

(6)  Moore  I'.  Calile,  1  John.  Cha  385;  10 
Pick.  398  ;  Ru.ssell  v.  Blake,  2  Pick.  506  ; 
Saunders  v.  Frost,  5  Pick.  259;  Ford  v.  Phil- 
pot,  5  H.  &  John.  312;  Qiiin  v.  Briltain,  1 
Hoffm.  353;  Clark  v.  S:nith,  Saxt.  121; 
Dougherty  v.  M'Colgan,  6  Gill  &  J.  275; 
4  Kent.  107,  n. ;  Mix  i'.  Hotciikiss,  14  Conn. 
32 ;  Sandon  v.  Hooper,  6  Beav.  246 ;  Hor- 
lock  I'.  Smith,  1  Coll.  Cha.  287. 

(7)  Rawlin^'S  v.  Stewart,  Bland,  22  n.  ; 
Neale  v.  Hagthorp,  3  lb.  590. 


[a)  The  question,  whether  a  mortgagee's  charges  are  reasonable,  is  not  for  a  jury,  but  for 
the  court,  with  reference  to  the  facts  found  by  tlie  jury.  And  in  an  action  by  the  mortga- 
gor, or  Ilia  assignee,  to  recover  back  money  overpaid  to  a  mortgagee  in  possession,  in  order 
to  prevent  a  foreclosure,  the  same  legal  and  equitalile  rules  are  to  govern,  which  apply  to  a 
settlement  of  the  mortgagee's  account  upon  a  bill  fur  redemption.  Cazenove  v.  Cutler,  4 
Met.  246.  !■  Maine,  the  niortgagnr  may  have  execution  for  the  excess  of  rents  received  by 
the  mortgagee  over  the  repairs.  And  the  court  may  deduct  on  this  account  from  the  money 
brought  into  court.     Me.  Rev.  St.  557. 

{b)  By  the  civil  law,  he  is  allowed  for  improvements  not  absolutely  necessary,  with  inter- 
est.    1   Poll. at.  365. 

(c)  On  the  contrary,  if  he  cut  timber,  ho  may  be  chargeable  for  waste.  Givens  v.  McCal- 
mout,  4  "Watts,  460.' 


428 


EQUITY  OF  REDEMPTION',  ETC., 


[CHAP.  XXXT. 


57.  Judge  Story  says,  it  seems,  there  is  no  universal  duty  in  a  mort- 
gagcG  to  makft  nil  sorts  of  repairs  ;  but  he  is  bound  to  make  such  as  are 
reasonable  and  necessary,  under  the  particular  circumstances  of  each 
case.  If  a  building  is  very  old  and  dilapidated,  there  is  no  rule  requi- 
ring him  to  incur  a  greatly  disproportionate  expense  in  repairing;  and 
he  certainly  is  not  bound  to  make  any  new  advances.  And  he  is  not  al- 
lowed for  improvements,  unless  they  increase  the  value  of  the  es- 
tate. (!)(«) 

58.  The  mortgagee  shall  not  get  uny  advantage  from  the  mortgage 
fund,  beyond  the  principal  and  interest  of  his  debt.  It  is  the  general 
rule,  that  where  a  mortgagee  receives  a  sum  exceeding  the  interest  due, 
it  shall  go  to  sink  the  principal.  But  in  decreeing  an  account,  it  seems, 
the  Court  of  Chancery  will  not  require  that  every  trifling  amount  be 
thus  applied  ;  or  in  all  cases,  even  that  annual  rests  be  made.  It  takes 
into  view  the  hardship  upon  the  mortgagee,  of  being  obliged  to  enter 
and  receive  his  debt  in  fractions,  and  obtaining  no  allowance  for  his  care 
and  trouble,  though  treated  as  a  bailiff  in  his  liability  to  account.  In 
general,  the  mortgagee  will  be  liable  for  an  excess  of  the  interest  re- 
ceived by  him  over  the  interest  of  his  debt;  but  it  will  be  otherwise, 
where  he  retains  it  after  satisfaction  of  his  debt,  by  mistake.  The  party 
claiming  to  redeem  shall  allow  interest  upon  the  money  which  he  ten- 
dered, and  which  the  defendant  refused  to  accept. {2){Ij) 

59.  Where  surplus  rents  remain  in  the  hands  of  the  mortgagee  after 
satisfaction  of  his  debt,  thej'  constitute  a  cAo.se  in  action,  which  may  be 
assigned  by  the  mortgagor ;  and  the  assignee  may  maintain  a  bill  for  an 
account.(3)  When  the  mortgage  is  accompanied  with  2i  power  of  sale  to 
the  mortgagee,  the  surplus  to  be  paid  to  the  mortgagor,  his  executors 
and  administrators  ;  if  the  land  is  sold  in  the  mortgagor's  lifetime,  the 
surplus  will  be  personal  estate;  if  after  his  death,  the  equity  will  de- 
scend to  his  heirs,  and  the  surplus  will  pass  along  with  it.(-i)  In  New 
York,  the  surplus  of  proceeds  of  sales  passes  to  heirs  and  is  assets.(5) 

60.  Upon  a  bill  in  equity,  to  redeem  an  equity  of  redemption  sold  oa 
execution,  the  defendant  shall  account  for  the  rents  and  profits,  though, 
before  suit  commenced,  the  plaintiff  tendered  the  amount  of  the  pur- 
chase-money which  he  paid  for  the  equity,  without  deducting  the  rents 
and  profits.(6) 


(1)  Dexter  v.  Arnold,  2  Sumn.  125,  6; 
Gordon  v.  Lewis,  lb.  143  ;  Reed  v.  Reed,  10 
Pick.  198. 

(2)  Gould  V.  Tancred,  2  Atk.  534;  Gordon 
V.  Lewis,  2  Sumn.  143  ;  Tucker  v.  Buffum, 
16  Pick,  46  ;  Finch  v.  Brown,  3  Beav.  70; 
Jenkins  v.  Eldredge,  3  Story,  325;  Paige 
V.  Broom,  4  Russ.  224;  McDaniels  v.  Lap- 
ham,  21  Verm.  222  ;  Duashee  v.  Parmelee,  19 


172  ;  Booker  v.  Gregory,  7  B.  Mon.  439;  Bos- 
ton, &c.  V.  King,  2  Cusli.  400;  Bourne  v.  Lit- 
tlefield,  29  Maine,  302;  Aston  v.  Aston,  1 
Vez.   264;   Earp.  1  Pars'.  (Penns.)  453. 

(3)  2  Sumn.  143. 

(4)  Wright  V.  R^se,  2  Sim.  &  St.  323. 

(5)  Moses  V.   Murgatroyd,    1    John.    Cha. 
119. 

(6)  Tucker  v.  Buffum,  16  Pick.  46. 


(a)  He  is  allowed  for  all  disbursement,  to  which  the  mortgagor  or  his  assignee,  liav- 
ing  notice  of  the  facts,  or  the  means  of  knowing  them,  assents.  Cazenove  v.  Cutler,  4 
Met.  246. 

(6)  Mortgage,  payable  in  two  years,  with  interest  semi-annually.  After  two  years,  an  as- 
signee enters  under  a  judgment  and  receives  tlie  rents,  &c.  Upon  a  bill  to  redeem,  brought 
by  tiie  widow,  held,  tliere  should  be  annual  rests;  the  amount  paid  by  defendant  the  first 
year  for  repairs,  4c.,  to  be  deducted  from  the  rents,  and  the  balance  considered  the  net 
rents:  the  interest  for  tlie  first  year  to  be  added  to  the  principal,  the  net  rent  deducted 
from  the  product,  and  the  balance  to  form  a  new  principal,  and  so  on  to  the  time  of  judgment. 
Van  Vronker  v.  Eastman,  7  Met.  157. 


CHAP,  xxxir.]  MOnxcjACiK— estate  of  a  mortgagee,  etc. 


429 


61.  Where  such  purchaser,  after  the  tender,  occupied  under  a  lease 
from  the  mortgagee  at  a  low  rent,  and  afterwards  purchased  the  nmrt- 
gage,  held,  he  shoulil  account  I'ur  the  fair  annual  value  ol  the  land,  with 
an  allowance  for  repairs  and  iini)roveinent.^.(l) 

H2.  In  Maine  and  Khode  Lslaiid,  the  nujitgagor  will  be  entitled  to 
redeeu),  by  paying  or  tendering  the  debt  due,  with  interest  ainj  costs, 
or  pertorining  or  tendering  performance  of  any  other  condition  o\  the 
niortiraue,  toiiether  with  the  amount  of  reasonable  expenses  incurred  iu 
rej)airs  and  betterments,  over  and  above  the  rents  and  profits.  And,  in 
Maine,  if  the  mortgagor  have  ])aid  money  to  the  mortgagee,  or  brought 
it  into  court,  without  deduction  on  account  of  the  rents  and  pr(;fits  re- 
ceived by  the  UK'rtgagee,  he  shall  be  entitled  to  a  restitution  of  the 
balance  due  him  on  this  account.  In  Massachusetts,  if  the  mortgagee, 
or  any  one  under  him,  has  had  possession,  he  shall  account  for  the  rents 
and  pnjfits,  and  be  allowed  lor  reasonable  n  pairs  and  improvement.^, 
for  taxes  and  assessments,  and  other  necessary  expenses  in  the  care  and 
management  of  the  estate.  If  there  is  a  balance  due  him,  it  shall 
be  added  to  the  amount  which  the  mortgagor  is  to  tender;  if  there  is 
a  balance  due  from  him,  it  shall  go  to  sink  tlie  debt.(2)(a)  In  Georgia, 
a  mortgagee  is  made  liable  for  taxes  upon  the  land,  if  the  mortgagor 
does  not  pay  them. (8) 


CHAPTER   XXXII. 

MORTGAGE— estate  OF  A  MORTGAGEE— SUCCESSIVE  MORTGAGES  OF  THE 

SAME  LAND. 


1.  Mortpape— personal   estate — passes   to 

executors,  Ac. 
4.  Devise  of  a  niortg:a<ie. 
8.  Atn-rican  lioctrine — vvhetlier  an  assign- 
nieni  of  tlie  debt  passes  the  mortgage. 
A3.sij?iiinent  of  mortgage  is  tiie  transfer 
of  an  estate. 
14,  Interest  of  mortgagee,  not  liable  to  exe- 
cution. 
13.  Statute  of  lituitations,  and  lapse  of  time. 
20.   Insurance. 


11 


21.  Sub.sequent  mortgagees — general  princi- 

ples. 

22.  Rights  of,  not  affected  by  transactions 

between  first  niortjigoe  and  mortgagor. 

24.  Assignment  of  first  mortgage. 

25.  Mortgage   to   several  persons  by  one 

deed. 

27.  Equitalilo  interference   for  subsequent 

mortgagee. 

28.  Fraud  on  tiio  part  of  tlie  mortgagor. 


1.  A  MORTGAGE,  though  it  purport  to  convey  a  fee-simple,  yet,  being 
merely  .'Security  for  debt,  is  p'/rsoinn  esiate,  so  long  as  the  right  of  re- 
demption continues.  Both  in  law  and  equity,  the  mortgagee  has  only 
a  chattel  interest,  or  a  chose  in  action.     lie  is  not  the  substuntial  oivntr. 


(1)  Tuoker  v.  Puffum.  IG  Pick.  46. 

(2)  1  Siniili's  St.  lGO-l-4;  Mass.  Rev.  St. 
636. 


(3)  Prince,  818. 


(a)  Bill  in  equity  to  redeem.  Answer,  that  tlie  tender  made  by  the  plaintiff  was  condi- 
tional, and  tliHt  he  had  not  been  always  afterwards  ready  to  pay.  Meld,  the  defendant 
could  not  su'isequently  plead,  that  tlie  suit  was  commenivd  more  than  a  year  after  th« 
tender,  according  to  St.  1821,  c.  86,  sec.  3.     Tucker  v.  Buffum,  16  Pick.  46. 


430 


MORTGAGE— ESTATE  OF 


[CHAP.  XXXII. 


His  principal  right  is  to  the  money,  and  his  right  to  the  hand  is  only  as 
security  for  the  money.  Hence,  upon  the  mortgagee's  death,  the  mort- 
gage passes  to  his  executors,  not  to  his  heirs ;  is  primarily  liable  for 
debts ;  and  may  be  devised  without  the  formalities  necessary  to  a  will 
of  real  estate. (l)(o) 

2.  Though  the  heir  of  the  mortgagee  be  in  possession  after  condition 
broken,  and  there  be  no  want  of  assets,  he  shall  be  decreed  to  convey 
to  the  administrator.(2) 

o.  In  Massachusetts,  Rhode  Island,  Maine  and  Michigan,  statutes 
provide,  that  the  executor,  &c.,  of  a  mortgagee  may  recover  possession 
of  the  land,  and  hold  it  as  assets,  and  be  seized  to  the  use  of  the  heirs, 
widow  or  devisees,  in  j\Iaine,  and,  in  Massachusetts,  of  creditors,  also, 
or  of  the  same  persons  who  might  claim  the  money,  if  paid  to  redeem 
the  land.(^)  In  Massachusetts" and  Rhode  Island,  it  may  be  sold  for 
payment  of  debts,  by  license  of  court.  In  Maryland,  an  executor  may 
discharge  a  mortgage. (3) 

4.  It  has  been  held,  that  lands  held  originally  under  old  mortgages 
passed  by  a  general  devise,  though  no  release  of  the  right  of  redemp- 
tion was  shown  ;  and  that  there  was  no  equity  between  the  executor 
and  the  lieir  or  devisee,  requiring  any  change  of  the  property  from  its 
condition  at  the  death  of  the  deceased  owner.(4) 

5.  If  the  mortgagee  indicate  an  intention  to  pass  the  mortgage  as 
real  estate,  the  law  will  so  treat  it.(c)  Thus,  where  he  devises  it  to  his 
daughter  and  her  heirs,  the  husband  of  such  daughter,  upon  her  death, 
shall  not  hold  it  as  personal  property,  but  it  shall  go  to  her  heirs.(5) 
And  it  seems  to  be  now  settled,  that  a  mortgage  will  pass  by  will,  under 
general  words  relating  to  the  realty,  unless  the  expressions  of  the 
will,  or  the  purposes  and  objects  of  the  testator,  call  for  a  different 
construction  (6) 

6.  If  the  mortgagee,  after  a  decree  for  foreclosure,  but  before  an  ac- 
count taken,  or  actual  foreclosure,  devise  the  mortgage  to  a  relation  to 


(1)  Treat  of  Equ.  B.  3,  ch.  1,  sec.  13; 
Grace  v.  Hunt,  Cooke,  344;  Jackson  v.  De 
Lancj',  13  John.  537;  Ballard  v.  Carter,  5 
Pick.  112;  Cliase  v.  Tuckermari,  11  G.  &  J. 
185;  Me.  Kev.  St.  555;  Cutta  v.  York,  &c. 
6S  hepl.  190  See  Silvester  v.  Jarman,  10 
Price,  78;  Harriett,  &c.,  M'Lel.  &  Y.  292; 
Thoniliroufrli  v.  Baker,  1  Cas.  in  Cha.  285; 
Bunyati  v.  Mersf-reau.  11  John.  534;  Martin 
V.  iMowlin,  2  Burr.  978;  Dougherty  v.  IV- 
Colfran.  6  Gill  &  J.  275. 

(2 1  KUis  V.  Guavas,  2  Cha.  Cas.  50. 

(3)  1  Smith.  16G-7;  Mass.  Rev.  St.  430; 
R.  I.  L.  233-4;   Mich.  L.  57;   Md.  L.   2528. 


See  Boylston  v.  Carver,  4  Mass.  609  ;  "Webber 
V.  Webber,  6  Greenl.  127  ;  Johnson  v.  Bart- 
lett,  17  Pick.  477  ;  Blair,  13  Met.  126;  Mass. 
Sts.  1849,  ch.  47  ;  1851,  ch.  288. 

(4)  Att'y-Gen.  v.  Bower,  5  Ves.  300.  See 
Pawlett  V.  Att'y-Gen.,  Hardres,  467  ;  Fields, 
&c.,  7  V.nor.  L.  &  Equ.  260;  Priel,  Law  Rep. 
June,  1850,  p.  92  ;  Beck  v.  MGillis,  9  Barb. 
35;  Asay  v.  Hoover,  5  Barr,  21;  Gay  «. 
Miiiot,  3  Cush.  352. 

(5)  Noys  V.  Mordant,  2  Yern.  581. 

(6)  Jackson  v.  Delancy,  13  John.  555  ; 
Braybroke  j;.  luksip,  8  Yes.  407. 


(a)  In  Johnson  v.  Bartlett,  17  Pick,  484,  Hunt  v.  Hunt,  14,  379-80,  and  Hatch  v.  Dwight, 
1*7  Mass.  299;  it  is  iniiraaied,  that  entry  for  condition  broken  might  change  the  chiiracter 
of  the  mortgagee's  estate.  So,  in  Rhode  Island,  it  is  said,  if  the  mortgagee  dies  without 
takin/j  possession,  the  mortgage  passes  to  bis  executors,  and  the  heirs  need  not  be  made 
parties  in  a  bill  to  redeem.  1  Sumn.  109.  So,  in  New  York,  the  mortgagor  is  said  to  have 
the  let;al  title  till  fort-dosure  or  entry.  Van  Duyne  v.  Tliayre,  14  Wend.  235-G.  See,  also, 
Perkins  v.  Dibble,'  10  Ohio,  438;   Miami,  &c.  v.  Bank,  &c.,  Wright,  249. 

{h)  In  Now  Hampshire,  the  law  is  the  same.     Gibson  v.  Bailey,  9  N.  H.  168. 

(c)  This  is  not  in  analogy  with  the  rule,  by  which  a  bequest  of  a  chattel  to  one  and  his 
heirs  passes  it  to  his  executors,  or  that  by  which  mortgage-money,  tliough  secured  to  heirs, 
goes  to  executors.     2  Cha.  Cas.  51. 


CUAP.  XXXII.]  A  MOUTGAGKK,  KTC.  431 

wIhjiii   lie  is  in(lt'l)t('(l  in  a  smallrr  .sum,  tliis  is  no  satisfaction  of  the 
dcl)t,  liciuj.;  rcj^'ardi'd  us  a  <lcvisc  ol"  real  (•slatL'.(i) 

7.  But  iu  such  cases,  aliliough,  as  between  a  devisor  and  devisee,  tlie 
mortgage  is  treated  as  real  estate  ;  yet,  lor  jmyment  of  debts,  it  is  held 
to  be  personal  assets,  in  case  of  cJe(icieney.(,2) 

8.  The  general  doctrine  above  stated,  (sec.  1,)  .seems  to  have  been 
fully  recoi^nized  in  New  York  by  Mr.  Justice  Kent.  Ub  says,  the 
estate  in  the  land  is  the  same  thing  as  the  money  due  on  the  note;  is 
liable  to  debts  ;  goes  to  executors;  passes  by  a  will  not  conformable 
to  the  sltilute  ol  frauds;  is  transferred  or  extinguished  by  an  assign- 
ment, or  even  a  parol  forgiving  of  the  debt.  The  land  is  but  appurte- 
nant to  the  debt.  Whoever  owns  the  latter,  is  likewise  owner  of  the 
former.  There  must  be  something  peculiai*  in  the  case,  some  very 
special  provision  of  the  partie.'',  to  induce  the  court  to  separate  the 
owneiship  of  the  note  from  that  of  the  mortgngc.  In  the  eye  of  com- 
mon sense  and  of  justice,  they  will  generally  be  united.  Upon  these 
grounds.  Judge  Kent  held,  that  the  delivery  of  a  mortgage,  accompany- 
ing the  indorsement  of  a  note,  which  it  was  made  to  secure,  passed  the 
mortgage  as  well  as  the  note.  Mr.  Jut-tice  Radclifle,  on  the  other 
hand,  held,  that  the  legal  title  to  the  land  did  not  pass;  although  the 
assignee  acquired  an  equitable  interest,  which  a  court  of  equity  would 
sustain  ;  that  although,  as  between  mortgagor  and  mortgagee,  the  mort- 
gage was  to  be  regarded  as  personal  estate,  so  as  to  pass  to  executors, 
or  be  extinguished  by  payment  of  tl^.e  debt ;  yet  it  could  not  be  so  re- 
garded, in  reference  to  a  transfer  to  third  persons.  In  a  subsequent 
case.  Judge  Kent  adheres  to  his  former  doctrine,  that  at  law,  as  well 
as  in  equity,  the  mortgage  is  regarded  as  a  mere  incident  attached  to 
the  doljt  {'i)(a) 

(1 )  Giirrt't  v.  Evera,  2  Cruise,  85.  t      (3)  Johnson  v.  Hart,    3    Jolin.  Cos    320; 

(2)  lb.  I  .Jackson  v.  Wiljard,  4,  43. 

(a)  A  similar  doclrino  is  adopted  in  Pennsylvania.  In  Maryland,  a  mortgage,  containing 
a  power  to  sell,  may  be  assigiR^d  liy  indorseniput  in  blank.  In  Vi-rinonI).  a  niort-^'a^re  inav 
he  as>iL'ned  l)y  parol.  I'rntl  v.  Bank.  Ac,  10  Verm.  293.  See  Wilkius  v.  French,  2  Appl. 
Ill  ;  Jiilin.son  v.  Hart,  3  John.  Cas.  329-30;  lb.  32(5-7  ;  Jack.son  v.  Willard,  4  John.  43  • 
2  Kawle,  242  ;  Crall  v.  Webster,  4,  242;  Md.  St.  1836,  ch.  249,  .sec.  15  ;  Slaughter  v.  Foust' 
4  Blackt.  380.  "  ' 

In  N'.>w  Hampshire,  the  estate  of  a  mortga2ee  is  liold  to  be  real,  so  far  as  is  nece-ssary  to 
ptrleci  his  security;  but  not  so  as  to  enable  him  to  transfer  liie  land  without  the  debt,  or 
to  pass  iho  debt  by  a  mere  deed  of  the  land.  Whctiier  the  rule  is  different,  alter  possession 
taken,  is  treated  as  douiiilul.     Ellison  v.  Daniels,  11  N.  II.  274. 

Upon  the  di.stinct  question,  whether  an  iissipnment  of  tlie  debt  carries  the  mortgafje  with 
it ;  the  courts  have  so  held  in  New  York,  Penn.sylvania,  New  Hampshire,  Vermont,  Ken- 
tucky, Mississippi  and  Alabama;  while  in  New  Jersey,  Ma.s8achusctts,  Jl.iiiie  and  Illinois, 
tlie  contrary  has  been  decided — with  more  or  le.ss  qualification  of  the  rules  on  one  side  and 
the  oilier,  growing  out  of  the  peculiar  circumstances  of  particular  cases.  In  Indiana,  a  deed 
is  nec-ossary  to  pa.ss  the  morlgagct-'a  le^al  title;  but  a  sale  of  the  note  passes  the  mortgage 
in  equity.  In  Connecticut,  an  assignment  of  the  mortgage,  and  sul'sequeiit  delivery  of  the 
nott-s,  vest  the  mortgage  title  in  the  assignee.  Johiuson  v.  Hart,  3  John.  Cas.  sL'O,  330; 
.Jaek.son  v.  "Willard,  4  John.  43;  Hanyiin  v.  Mersereau,  11,  534  ;  Southerin  v.  Mendum,  5 
X.  II.  420;  Rigney  v.  Lovejoy,  13.  247  ;  Pratt  v.  Bank,  Ac,  10  Verm.  294;  Keyes  v.  Wood, 
21.  331  ;  Belding  v.  Manly,  lb.  550;  Burdett  v  Clay,  8  B.  Men.  287  ;  Waller  v.  Tate,  4 
532;  Dick  v.  Muwry,  9  Sin.  A  M.  448;  Lewis  v.  Starke,  10,  120;  Henderson  v.  Herrod,  lb. 
C31;  Bank,  Ac.  v.  Tarletoii,  23,  173;  M'Vay  v.  Blood>cood,  9  Por.  547  ;  Den  v.  Dimon,  5 
llalst.  IJG;  Warden  v.  Adams,  15  Mass.  233.  See  Cutlery.  Haven,  8  Pick.  490.  Smith 
V.  Kelley,  27  Maine,  237  ;  Dwinel  v.  Perley,  32,  197  ;  MoConneil  v.  Hodson,  2  (Jilm.  040; 
Dudley  v.  Cndwell,  19  Conn.  218:  Roberts  v.  Ilalstead,  9  Barr,  32;  Donlev  v.  Ilavs,  17  s! 
A  R.  400;  Givan  v.  Tout,  7  Blackf.  210;  Clearwater  v.  Rose,  1,  137;  Burton  v.  Baxter  7 
297  ;  Slaughter  v.  Foust,  4,  379  ;  Slate,  Ac.  v.  Tweedy,  8,  447.  '    ' 


432 


MORTGAGE— ESTATE  OF 


[CHAP.  XXXII. 


9.  But  in  New  Jersey,  it  has  been  held  that  tlie  principle  of  treat- 
ing a  mortgage  as  a  mere  incident  to  the  debt  which  it  is  designed  to 
secure,  does  not  dispense  with  the  necessity  of  a  formal  assignment  of 
the  former,  to  a  party  who  pays  and  takes  up  the  latter,  in  order  that 
he  may  defend  against  a  suit  for  the  land  by  the  mortgagor.  And 
where  an  informal  assignment  was  first  taken,  another  formal  assign- 
ment, made  after  commencement  of  suit,  will  be  ineffectual  as  a  de- 
fence to  the  action.  In  such  case,  the  mortgagee  holds  the  mortgage 
in  trust  for  the  party  avIio  pays  the  debt,  but  the  latter  has  no  legal 
title.(l) 

10.  In  New  Hampshire,  it  is  said,  a  mortgage  passes  nothing,  unless 
it  appears  that  the  debt  secured  also  passed,  or  was  in  the  power  of 
the  mortgagee.(2) 

11.  Although  a  mortgage,  in  most  respects,  is  treated  as  a  mere 
security  accompanying  the  debt ;  yet  the  assignment  of  a  mortgage 
is  held  to  be  the  conveyance  of  an  estate,  and  not  the  mere  transfer 
of  a  security.  Hence,  the  assignee  must  bring  an  action,  if  at  all, 
in  his  own  name.(3)(«) 

1"2.  But  if  the  mortgagor  is  disseized,  the  mortgagee  is  also  dis- 
seized, and  cannot  convey  his  interest.(4) 

18.  Where  a  mortgage  is  given  to  secure  several  bonds,  and  the 
mortgagee  assigns  a  part  of  them  at  different  times  and  to  different 
persons,  and  the  mortgaged  premises  are  afterwards  sold  upon  execu- 
tion in  favor  of  the  mortgagee  against  the  mortgagor ;  the  proceeds  of 
sale  shall  be  applied  in  payment  of  all  the  bonds  pro  rata,  as  well 
those  which  the  mortgagee  himself  retains,  as  those  which  he  has 
transferred.  The  principle,  "  qui  prior  in  tempore,  potior  est  injure,^''  is 
not  applicable  to  this  case,  because  it  relates  only  to  successive  charges 
upon  the  same  property,  whereas  the  several  bonds  in  this  case  are  dis- 
tinct things;  and,  if  the  respective  dates  of  the  transfers  were  open  to 
inquiry,  great  uncertainty  and  fraud  "would  be  likely  to  ensue.  The 
mortgagee  himself  has  equal  rights  wiili  the  assignees,  because  the 


(1)  Den  V.  Dimon,  5  Halst.  156. 

(2)  Warden  v.  Adams,  15  Mass.  233;  Par- 
sons V.  Welles,  n  Ma.s9.  419;  Bell  v.  Mnrse, 
6  N.  H.  205 ;  Southerin  v.  Mendura,  5  N.  H. 


420.     But  see  Cutler  v.  Haven,  8  Pick.  490, 

(3)  Gould  V.  Newman,  6  JMass.  239. 

(4)  Poignard  v.  Smith.  8  Pick.  272.     See 
Converse  v.  Searls,  10  Verm.  578. 


Wliere  netrotiable  notes  are  secured  by  mortgage,  and  assigned  without  the  latter,  the 
mortgagee  becomes  a  trustee  for  the  assignees,  and  holds  the  mortgage  for  their  benefit. 
Crane  v.  March,  4  Pick.  131. 

In  Vermont,  as  has  been  seen,  an  assignment  of  al!  the  notes  secured  by  mortgage  passes 
the  mortgage  also.  An  assignment  of  a  part  of  them  may  or  may  not  have  this  effect,  ac- 
cording to  the  agreement  ol  the  parties.     Langdon  v  Keith,  9  Verm.  299. 

In  Pennsylvania,  a  mortga^^e,  and  the  claim  which  it  secures,  are  so  far  distinct,  that 
where  a  scire  facias  is  brought  on  a  bond  with  warrant  of  attorney,  it  is  no  defence  that  a 
mortgasfe  l)y  which  tiie  bond  was  secured,  is  not  in  the  plaintiff's  possession,  or  is  lost,  mis- 
laid, or  destroyed.     Hodgdon  v.  Naglee,  5  Watts  &  S.  217. 

{a)  But  where  the  mort^zage  is  assigned  as  security  for  a  smaller  sum  than  is  due  upon 
it,  the  mortgagee  may  maintain  a  bill  for  foreclosure,  especially  if  tlie  assignee  refuses  to 
sue.  Norton  v.  Warner,  3  Edw.  106.  So,  wliere  he  guarantees  the  mortgage  debt  to  the 
assignee,  he  is  a  proper  party  to  a  suit  for  foreclosure.  Bristol  v.  Morgan,  3  Edw.  142; 
Curtis  v.  Tyler.  9  Paige.  432  ;  Leonard  v.  Morris,  lb.  90.  Where  a  mortgage  is  itself  mort- 
gaged, it  seems,  three  years'  redemptioa  will  be  allowed,  as  iu  case  of  real  estate.  Cutts  v. 
York,  &c.,  6  Shepl.  190. 


CHAP.  XXXIL]  A  MORTGAGEE,  ETC.  433 

assitrnment  involved  no  transfer  of  the  mortgage,  unless  by  implication, 
and  no  warranty  express  or  iinplie(l.(l)(a) 

14.  It  has  l)een  already  seen,  (ch.  81,)  that  an  equity  of  redemption 
is  liable  to  legal  process  for  the  debts  of  the  mortgagor. 

15.  On  the  other  hand,  the  estate  of  a  mort/jarjee,  before  foreclosure, 
or  possession  taken  by  him,  is  .not  subject  to  be  taken  upon  execution. 
Llntil  foreclosure,  it  is  a  mere  chose  in  action,  and  an  incicleut  a'ttached 
to  the  debt,  from  which  it  cannot  properly  be  separated.  As  distinct 
from  the  debt,  the  mortgage  has  no  determinate  value ;  and,  if  assigned, 
the  assio-nee's  rights  must  be  subject  to  the  holder  of  the  personal  secu- 
ritv.  And  the  debt  cannot  be  sold  with  the  mortgage,  it  being  well 
settled  that  a  cliose  in  action  is  not  subject  to  sale  on  execution. (2) 

1(3.  These  remarks,  made  by  Mr.  justice  Kent,  seem  to  require  not 
merely  entry,  'hui  foreclosure,  by  the  mortgagee,  to  subject  his  interest 
to  be  taken  on  execution.  The  case  finds,  however,  thai  the  mortgagee 
hatl  not  entered,  and  the  question  stated  for  decision  is,  whether  a  sale 
is  valid,  made  "before  foreclosure,  and  while  the  mortgagor  is  suffered 
to  retain  possession."  And  the  learned  judge  remarks,  that  ivhen  the 
mortgagee  has  taken  possession,  the  i-ents  and  profits  may  become  the  sub- 
ject of  computation  and  sale.(3) 

17.  In  Massachusetts  and  Connecticut,  it  is  distinctly  decided,  that, 
before  entrv,  the  mortgagee's  interest  is  not  subject  to  execution  ;  and 
doubted,  whether  it  is  so  subject  before  foreclosure:  because,  till  that 
event,  all  the  inconveniences  exist  which  are  applicable  in  the  other 
case.  The  like  decision  has  been  made  in  Kentucky.  In  New  Hamp- 
shire, the  interest  of  the  mortgagee  cannot  be  levied  on,  unless  that  of 
the  mortgagor  is  also  taken,  and  they  join  in  appointing  an  appraiser, 
or  uidess  there  has  been  an  entry  to  foreclose.  A  judgment  for  posses- 
sion is  not  enough. (4) 

18.  Notsvithstanding  the  principle,  that  the  mortgage  is  merely  inci- 
dent to  the  personal  security  which  it  accompanies,  the  statute  of  limi- 
tations, applicable  to  the  latter,  will  not  bar  a  claim  upon  the  former.  On 
the  contrary,  the  recital  of  a  debt  in  the  mortgage  deed  has  been  held 
to  take  such  debt  out  of  the  operation  of  the  statute.(5)(6) 


(1)  Donley  v.  Hays,  17  Ser.  &  R.  400. 

(2)  Jackson  v.  Willard,  4  John.  43-4. 
(.S)  lb.  41-2-4. 

(4)  Eaton  v.  Whiting,  3  Pick.  488  ;   Hunt- 
ington V.  Smith,  4  Conn.  237  ;  1  Dana,  24-188 ; 


Johnson  f.  Bartlett,   17   Pick.  477;  Glass  r. 
Ellison,  9  N    11.  69. 

(5)  Clark  v.  Bull,  2  Root,  329 ;  Lanpran  v. 
Henderson,  1  Bland,  282;  Ileyer  v.  Pruyn,  7 
Paige,  465  ;  Cheslyn  v.  Dalbey,  2  Y.&  C.  170. 
See  Den u  Spinning,!  Halst.  473;  ch.  33,  sec.  6. 


(it)  This  decision  was  made  by  a  majority  of  the  court  in  Pennsylvania.  Gibson,  Ch.  J., 
dissented,  on  the  grounds,  that  the  asHignmenl  created  a  moral  obligation  upon  the  mort- 
gagee, which  equity  would  enforce,  though  not  a  k-g.il  one  ;  that,  the  debt  being  the  principal, 
and  the  mortgage  an  accessory,  the  assignment  of  a  part  of  the  debt  was  an  assignment  of 
the  mortgage,  not  pro  rdta,  but  juro  tunt'),  and  the  assignee,  a  purchaser  of  all  the  securities  o{ 
the  assignor,  to  be  used  l)y  him  as  freely  and  beneficially  as  by  the  assignor  himself:  and  that 
the  same  principles  were  applicable  to  assignees  of  separate  parts  ot  the  same  debt. 

Where  a  veiid<ir  ol  land  lalies  several  notes  for  the  price,  retaining  also  a  lien  upon  the  land, 
and  pressed  in  iheas.signment.  Ewing  v.  Arthur,  J  Humph  537  :  ace.  McVay  v.  Bloodgood, 
the  proceeds  shall  bo  upplied  to  all  the  notes  pro  rata,  unless  a  contrary  intention  is  ex- 
assigns  some  of  the  notes,  with  the  lien,  retaining  the  others;  upon  a  sale  of  the  property, 
Por.  547.  Cut  where  a  note  secured  by  mortgau'C  is  assigned,  this  is  pro  tanto  an  assigQ- 
ment  of  the  mortgage,  and  if  the  security  is  in.sufficient  for  the  wliole  debt,  the  assignee  haa 
a  prior  claim.  Cullum  v.  Krwin,  4  .\la.  (N  .S )  452.  Succe-nive  assignees  have  priority  in 
the  order  ol  their  assignments,  unless  it  is  expressly  agreed  otherwise.     lb. 

{b)  Ace.  N.  H.  Kev.  St.  360 ;  Thayer  v.  Mann,  19  Pick.  536.     See  Grinuell  v.  Baxter,  17 

Vol.  I.  28 


434  MORTGAGE— ESTATE  OF  [CHAP.  XXXII. 

19.  A  mortgage  was  made  in  1809,  and  recorded.  The  mortgagor 
transferred  the  estate.  The  mortgagee  never  gave  notice  of  his  mort- 
gage to  the  purchaser;  and,  in  1821,  brought  a  suit  for  the  land,  and 
recovered. (l)(a) 

20.  The  principle,  that  the  personal  security  and  the  accompanying 
mortgage  are  incident  to  each  other,  does  not  apply  to  any  merely  col- 
lateral security,  obtained  by  the  mortgagor  for  the  benefit  of  the  estate. 
Thus,  the  mortgagee  has  no  claim  to  a  policy  of  insurance  upon  the 
premises,  to  the  exclusion  of  other  creditors.  It  is  a  mere  personal 
contract,  not  attached  or  incident  to  the  mortgage.("2)(i) 

(1)  Dick  V.  Balch,  8  Pet.  30.  i      (2)  Columbia,  kc.v.  Lawrence,  10  Pet.  507  ; 

]  McDonald  v.  Black,  20  Oliio,  185. 

Fick.  383  ;  Miller  v.  Helm,  2  Sm.  &  M.  687  ;  and  infra,  eh.  33,  sec.  6.  See  also  Davis  v. 
Battine,  2  Russ  &  M.  76,  that  commitment  of  the  mortgagor  in  a  suit  upon  the  debt  is  no 
bar  to  a  subsequent  action  on  the  mortgHge.  In  case  of  an  equitable  lien  upon  land  for  the 
unpaid  purchase-money,  the  vendor  may  enforce  it,  though  he  has  lost  tlie  benefit  of  a  se- 
curity for  the  price,  by  lapse  o(  time.  Magruder  v.  Peter,  11  Gill  &  J.  217.  Wiiere  a  bond 
was  secured  by  mortgage,  and  the'  mortgagee  held  po.ssession  twenty  years,  no  interest 
being  paid  :  it  was  doubted  whetlier  an  action  on  the  bond  would  be  barred  by  lapse  of 
time.     White  v.  Hillacre,  3  Y.  &  Coll.  597. 

(a)  Ejectment  upon  a  mortgage,  dated  September  24,  1773.  The  suit  was  brought  in  1814. 
Neitiier  the  original  mortgage  nor  note  was  produced  by  the  plaintifiT,  but  a  record  copy  of 
the  former.  Pie  also  proved  that,  in  tlie  revolutionary  war,  the  shop  of  the  mortgagee, 
where  many  of  his  papers  were  kept,  was  burned.  Tliere  was  no  evidence  of  possession 
or  a  demand  of  possession  till  a  few  weeks  before  the  suit  was  brought;  nor  of  any  demand 
of  payment  of  tlie  note.  But  it  was  proved  that  in  1776  the  mortgagor  left  the  State,  and 
soon  afterwards  died.  The  delendant  claimed  under  conveyances  from  the  mortgagor,  and 
by  virtue  of  subsequent  continued  possession.  The  plaintiff  sued  as  administrator  of  the 
mortgagee.  Held,  even  if  the  original  securities  were  produced,  the  action  would  probably 
be  barred  by  lapse  of  time,  raising  a  presumption  of  payment.  The  mortgagor's  leaving 
the  State  did  not  rebut  this  firesumption,  because  the  note  was  due  before  he  left,  and  llie 
land  might  have  been  resorted  to  afterwards.  But,  moreover,  the  ofiQce  copy  was  not  legal 
evidence,  tlie  loss  of  the  original  not  being  sufficiently  proved.  Inches  v.  Leonard,  12 
Mass.  379. 

A  gave  to  B,  his  surety  on  several  notes,  a  mortgage,  for  security  and  indemnity.  Some 
of  the  notes  being  outlawed,  A  became  an  insolvent  debtor  under  the  insolvent  law  of  Mas- 
sachusetts. Held,  B  might  apply  the  property  first  to  the  valid  notes,  and  that  the  rest 
must  be  distributed  2^>''^  ''o*'*  among  the  holders  of  the  others,  they  having  an  equitable 
lien  on  the  (iind ;  but  that  he  could  not  pay  some  of  the  outlawed  notes  from  the  property, 
to  the  exclusion  of  others,  the  latter  having  an  equal  equitable  claim  with  the  former. 
Eastman  v.  Foster,  8  Met.  19.  Held,  also,  that  the  property  was  subject  to  this  equitable 
lieu,  although  the  mortgage  had  been  foreclosed ;  and,  as  against  attaching  creditors  or 
grantees  of  B,  or  au  a.ssignment  under  the  msolvent  law.     lb. 

{b)  But  if,  by  the  terms  of  the  mortgage,  tlie  mortgagor  was  bound  to  insure  for  the  mort- 
gagee's benefit ;  the  latter  has  an  equitable  lien  upon  the  insurance,  to  the  amount  of  his 
debt.     Carter  v.  Rocket,  8  Paige,  437. 

So,  where  .\,  holding  a  mortgage,  a.ssigns  it  to  B,  covenanting  that  it  is  due  and  collectable, 
and  afterwards  takes  a  bond  from  C,  as  security;  B  shall,  in  equity,  have  the  benefit  of  it, 
and  C  is  properly  made  party  to  a  suit  for  foreclosure,  being  liable  to  B,  if  the  land  proves 
deficient.  Curtis  v.  Tyler,  9  Paige,  432.  In  Maine,  by  a  late  statute,  where  a  mortgagor 
effects  insurance,  if  he  consents  in  writing,  the  insurer  may  pay  the  loss  to  the  mortgMgee; 
if  he  does  not  consent,  a  trustee  process  lies,  and  a  payment  will  be  available  pro  tanto. 
Different  mortgagees  have  claims  according  to  priority.  Any  insurance  liy  the  mortgagee 
will  be  void,  if  he  claims  under  this  act,  unless  the  insurer  of  the  mortgagor  consent.  St. 
1844,  97-8.  Where  a  life  policy  is  assigned  to  tlie  mortgagee,  in  trust  to  receive  the  pro- 
ceeds; he  cannot  have  a  decree  to  sell  it,  but  may  have  one  for  the  foreclosure,  and  still  re- 
tain the  policy.  Dyson  v.  Morris,  1  Hare,  413.  The  mortgagor  and  mortgagee  may  each 
insure  his  own  interest.  If  the  latter  does  it,  it  is  merely  an  insurance  of  the  debt,  which 
ceases  when  the  debt  is  paid.  If  a  loss  occurs  before  such  payment,  he  may  recover,  to  the 
amount  of  the  debt,  and  the  insurer  uvdy  claim  an  assignment  of  the  debt,  and  enibrce 
it  against  tlie  mortgagor.  If  the  morto:a<j:or  obtains  insurance,  it  has  been  held  that  he  may  re- 
cover the  full  amount  of  the  policy.   Carpenter  v.  Providenje,  &c.,  16  Pet.  495.   See  King  v.  the 


CHAP.  XXXII.] 


A  MORTGAGEE,  ETC. 


435 


21.  It  has  already  been  stated,  (ch.  81,)  that  a  mortgagor  may  mort- 
gage his  equity  of  redemption,  or,  as  it  is  commoidy  expressed,  make 
a  seeond  mortgage  of  the  land  ;  and  that  a  second  mortgagee  stands  in 
the  place  of  the  mortgagor,  as  to  his  right  of  redeeming  the  first  mort- 
gage. And  tlie  right  in  equity,  of  redeeming  any  number  of  succes- 
sive mortgages,  may  be  mortgaged  ane\v.(l)(a)  It  seems  to  be  the 
universal  rule  in  the  United  States,  that  mortgages,  like  ,nther  deeds, 
take  etfect  in  the  onier  of  their  re/ii^tratlon.  In  Enghmd,  upon  the  same 
principle  of  tackinc/,  by  which  it  has  been  seen,  (ch.  81,)  that  a 
mortgagee  may  insist  upon  payment  of  independent  claims  against  the 
mortgagor,  as  the  condition  of  redemption;  a  third  mortgagee  may 
gain  priority  over  a  second  mortgage,  by  buying  up  the  first  mortgage 
and  I'lcking^'M  to  his  own,  tliereby  obliging  the  second  mortgagee  to 
redeem  both,  in  order  to  redeem  one. 

22.  The  rights  of  a  second  mortgagee  cannot  be  impaired  by  any 
transaction,  to  whiih  he  is  not  a  party,  between  the  first  mortgagee 
and  the  mortgagor;  nor,  on  the  other  hand,  will  such  transaction  operate 
as  an  extinguishment  of  the  first  mortgage,  unless  the  circumstances 
plainly  demand  this  construction. 

28."^  A  mortgaged  to  B,  afterwards  to  0,  afterwards  to  D.  B  and  C 
entered  on  the  same  day,  fur  condition  broken.  Afterwards  E,  a  cre- 
ditor of  A,  attached  his  equity  of  redemption,  recovered  judgment  in 
the  suit  against  him,  and  subsequently  purchased  and  took  an  assign- 
ment of  B's  mortgage.  At  the  execution  sale,  E  afterwards  purchased 
A's  equity  of  redemption,  and,  after  the  expiration  of  a  year  from  such 
purchase,  believing  and  representing  himself  to  be  the  absolute  owner 
in  fee,  conveyed  with  warranty  to  F.  C,  the  second  mortgagee,  ten- 
dered to  F  tlie  amount  due  upon  B's  mortgage,  at  the  same  time  pro- 
testing that  he  considered  it  as  extinguished,  and  brought  a  bill  inequity 
to  redeem.  Held,  1.  That,  although,  by  purcluising  the  equity  of  re- 
demption, according  to  the  English  hiw,  E  might  have  excluded  inter- 
vening incumbrances,  yet,  as  the  doctrine  of  tacking  is  here  unknown, 
be  acquired  no  such  right.  2.  That  the  right  of  C  to  redeem  B's  mort- 
gage was  not  reduced,  by  the  sale  on  execution,  from  three  years  to 
one  year  ;  such  abridgment  of  the  right  of  redemption  being  wholly 
confined  to  the  relation  between  the  mortgagor  and  purchaser,  and  not 
afl'ecting  the  claims  of  other  mortgagees,  accruing  before  attachment  of 
the  equity,  which  are  not  subject  to  be  impaired  by  any  transaction 
between  the  mortgagor  and  liis  creditors.  3.  That  the  union  of  the 
equity  of  redemption  and  the  first  mortgage  in  the  hands  of  E  did  not 
extinguish  the  latter.    Decreed,  that,  on  payment  of  the  sum  due  upon 


(1)  8  Mass.  555,16  Pet.  495.  See  War- 
burton  V.  Lanman,  2  Greene,  420 ;  Ellawonli 
V.  Mitchell,  31  Maine,  247;  Barber  v.  Gary. 
11  Barli.  519  ;  State,  &c.  v.  Campbell,  2  Rich. 
Equ.  179;  Head  v.  Egerton,  3  P.  Wins. 
280;  Hooper  v.  Ramsbottora,  6  Taun.  12; 


Dale  V.  Shirley,  8  B.  Mon.  524  ;  Kimmell  v. 
Willard,  1  Doug.  217;  Simonds  v.  Browu, 
18  Venn.  231;  Clarke  i).  Stanley,  10  Barr, 
472;  Jones  v.  Phelps,  2  Barb.  Clia.  440; 
Ilolabird  v.  Burr,  17  Conn.  556  ;  Bank,  ic.  v. 
Peter,  13  Pet.  123;  Hall  v.  Bell,  6  Met.  431. 


State,  &c.,  7  Cush  ;  Thomas  v.  Von  Kapff,  6  G.  &  John.  372 ;  Vernon  v.  Smith,  5  B  &  A.  1 ; 
Kiltred.,'e  v.  Rockingham,  &c.,  (N.  H.)  Law  Rep.  (Dec.  1849,)  412  ;  King  v.  State,  i-c.,  (Mass.) 
lb.  (June,  1851,)  88;   Felton  v.  Brooks,  4  Cush.  203;  Larrubeo  v.  Lambert,  32  Maine,  97. 

(a)  So,  land  suliject  to  the  lien  of  an  execution  may  be  mortgaged ;  and  the  mortgagor 
cannot  interfere  with  the  mortgagee's  title,  by  orderiaga  sale  of  more  tlian  enough  to  satisfy 
the  execution.     Addison  v.  Crow,  5  Dana,  279. 


436  MORTGAGE— ESTATE  OF  [CHAP.  XXXII. 

the  first  mortgage,  F  should  surrender  the  land,  and  convey  and  release 
his  right  as  the  assignee  of  E.(l)(a) 

24.  An  assignment  of  the  prior  mortgage  to  a  subsequent  mortgagee 
does  not  necessarily  operate  as  an  extinguishment  of  the  first  mortgage. 
Thus,  where  a  mortgagee  leased  the  land,  and  a  subsequent  mortgagee 
undertook  to  discharge  the  first  mortgage,  paid  the  debt,  and  took  an 
assignment  of  the  first  mortgage  and  the  lease,  for  the  purpose  of  col- 
lecting ihe  rent;  this  was  held  no  extinguishment.(2) 

25.  Where  a  mortgage  is  made  to  several  persons,  to  secure  debts 
due  to  them  severally,  but  giving  a  partial  priority  to  some  over  others; 
they  are  not  to  be  regarded  as  prior  and  subsequent  mortgagees,  in 
reference  to  their  respective  claims  upou  the  property,  but  as  parties 
to  one  deed,  with  full  notice  of  its  terms.  Thus,  to  secure  pre-existing 
debts,  a  debtor  mortgaged  to  three  creditors,  A,  B  and  C,  who  were 
absent,  and  ignorant  of  the  transaction.  The  sum  secured  was  $8,000, 
to  be  paid  in  the  proportion  of  $2,000  to  the  mortgagee  last  named, 
and  to  the  first  and  second  $3,000  each.  At  the  date  of  the  mortgage, 
the  second  and  third  had  advanced  the  amount  of  their  respective  claims, 
but  the  first  had  not.  He  had  since,  however,  made  up  the  deficiency 
by  further  advances.  The  property  being  sold  on  execution  under  the 
mortgage,  and  the  proceeds  insuflicient  to  pay  the  whole  sum  secured; 
held,  they  should  be  distributed  according  to  the  sums  expressed  in  the 
mortgage ;  that  C  did  not  stand  as  a  subsequent  mortgagee,  but  the 
owner  of  an  interest  in  common  with  the  others,  and  under  the  same 
title ;  that  he  had  neither  done  any  act  nor  relinquished  any  right,  in 
consequence  of  the  mortgage,  to  his  own  prejudice;  and  that,  having 
affirmed  the  instrument  in  part,  he  was  bound  by  it  in  the  whole.(3)(6) 

26.  A  second  mortgagee  succeeds  to  all  the  rights  of  the  mortgagor, 
arising  out  of  any  special  contract  which  the  latter  has  made  with  the 
first  mortgagee,  in  relation  to  'the  land.  Thus,  if  the  first  mortgagee, 
having  taken  a  lease  of  the  mortgagor,  covenanting  to  pny  rent,  refuse 
to  pay  the  rent  to  a  subsequent  mortgagee,  when  demanded,  nut  having 
paid  it  to  the  mortgagor  ;  the  subsequent  mortgagee,  when  he  redeems, 
may  compel  the  first  mortgagee  to  account  for  the  profits,  as  received 
towards  the  payment  of  his  prior  mortgage.(4) 

27.  Where  one  creditor  has  two  funds,  from  which  he  may  satisfy 
his  debt,  and  another  has  a  subsequent  lien  on  only  one  of  the  funds, 
the  former  creditor  will  be  compiiiled  in  equity  to  resort  to  his  exclu- 


(1)  Thompson  v.  ('handler,  7  Greenl.  377. 
(See  ch.  33,  sec.  34.) 

(2)  Willard  v.  Harve}',  5  N.  H.  252. 


(3)  Irwin  v.  Tabb,  17  S.  &  R.  419. 

(4j  Xewall  v.  Wright,  3  Mass.  138. 


(a)  A  junior  mortoragee  must  be  made  party  to  a  bill  for  foreclosure  by  a  senior  one — else 
he  is  not  bound  thereljy.  Cooper  v.  Martin,  1  Dana,  25.  But,  in  New  Hampshire,  if  a 
mort^Mgee  bring  an  action  at  law  against  the  mortgagor,  recover  judgment,  enter  and  re- 
main in  possession  a  year;  the  forerlosure  buids  a  subsequent  mortgagee,  thougii  not  notified 
of  such  entry.     Powner  v.  Clement,  11  K  H.  40. 

(b)  Wiiere  a  trustee,  liolding  two  sums  of  motiej',  one  belonging  to  A,  the  other  to  B, 
loaned  both  to  C,  taking  distim.-t  mortgages  at  the  same  time,  and  not  intending  any  priority, 
but  one  mortgage  was  recorded  a  short  lime  belore  the  otlier;  held,  they  sliouid  be  paid 
ratealily.  according  to  tlieir  respective  amounts.  Rh'jades  v.  Canfield.  8  Paige,  545.  Where 
one  owning  an  undivided  siiare  of  a  township  mal<es  a  mortgage,  covering  but  a  portion  of 
his  interest,  tlie  mortgagee  takes  a  proportional  share,  as  tenant  in  common,  iiaudell  v. 
Mallelt,  2  Shepl.  51. 


CHAP.  XXXII.]  A  MORTGAGEE,  ETC.  437 

sive  fund,  provided  it  can  bo  done  without  injury  to  himself  or  the 
debtor.  Thus,  if  A  mortgages  two  estates  to  B,  and  then  mortgages 
only  one  of  them  to  C,  the  court  will  order  B  to  take  satisfaction  from 
the  estate  which  is  not  included  in  C's  mortgage,  if  sulficient  for  the 
purpo.se.  Bat,  where  there  exists  any  doubt  of  tlie  sulliciency  of  this 
estate,  or  where  the  first  mortgagee  is  unwilling  to  run  the  ha^jard  of 
obtaining  payment  from  it,  equity  cannot  take  from  hiurmiy  part  of 
his  security,  till  he  is  fully  satisfied. (1) 

28.  In  Georgia  and  South  Carolina,  a  mortgagor  who  makes  a  second 
mortgage,  without  disclosing,  in  writing,  the  existence  of  the  first  to 
the  second  mortgagee,  shall  not  be  allowed  to  redeem  the  second  mort- 
gage, l^ut  the  secoiul  mortgagee  (whose  deed  is  on  record,  in  Georgia), 
may  redeem  the  first  mortgage.  In  South  Carolina,  if  a  person  suffer  a 
judgment,  or  enter  into  a  statute  or  recognizance,  binding  his  land,  and 
afterwards  mortgage  it,  without  giving  notice,  in  writing,  of  the  prior 
incumbrance,  unles.s,  within  six  months  from  a  written  demand,  he 
clear  off  such  incumbrance,  he  shall  not  be  suffered  to  redeem. (2)(r<) 

(1)  Evertson  v.  Bootli,  19   John.  486-93;  l  Lanoy  v.  Duko.  &c,  2  Atk.  444;  iliami,  &c. 
Petlibone  v.  Stevens,  15  Conn.  19;  Ayres  v.    v.  Bank,  &c.,  Wright,  249;  Barnes  v.  Baxter, 
Husted,    15    Conn.    516;    Bank  v.   Mitchell,    1  Y.  &  Coll.  401;    YieWo'^s  v.   Rockwell,   19 
Rice,  (Equ.)    389.     See   Sober  v.    Kemp,    6    Conn.  446. 
Hare,  155  ;  Ferris  v.  Crawford,  2  Denio,  595  ;  |      (2)  Prince,  161 ;   1  Brev.  166-7-8. 

(a)  In  connection  with  the  subject  of  successive  mortgages,  may  bo  briefly  stated  the  well 
established  rule  of  equity,  tliat,  where  a  raortgajje  is  given  for  a  debt  wiiieh  is  also  secured 
by  the  obligation  of  a  surety ;  the  surety  is  entitled  to  bo  subrogated  or  substituted  to  all 
the  rights  and  remedies  of  the  creditor  whose  debt  he  is  compelled  to  pay,  in  relation  to  the 
mortgaged  estate;  and  that  the  mortgagee  cannot  relinquish  the  estate,  without  thereby 
also  discliarging  the  surety.  Matliews  v.  Aikin,  1  Comst.  599;  Root  v.  Bancroft,  10  Met. 
46;  Copis  v.  Middleton,  1  Tur.  &  R.  231 ;  Hodgson  v.  Shaw,  3  My.  &  K.  195  ;  Williams  v. 
Owen,  13  Sim  597  ;  Hays  v.  Ward,  4  Jolm  Ch.  130  ;  Bowker  v.  Bull,  1  Sim.  (X.)  34  ;  Nor- 
ton V.  Coons,  3  Denio,  130  ;  Higgins  v.  Frankis,  10  Jur.  32S  ;  Go.ssin  v.  Brown,  1  Jones  (Pen.) 
627;  McDermott  v.  Bank,  &c.,  9  Humph  123;  Root  v.  Slow,  13  Met.  5;  Capel  v.  Butler, 
2  Sim.  &  St.  457  ;  Becket  v.  Snow,  1  Cush.  510  ;  Orvis  v.  Xewell,  17  Conn.  97  ;  Brewer  v. 
Staples,  3  Sandf.  Cha.  579  ;  McLean  v.  Towle,  3  Sandf.  117  ;  King  v.  McVickar,  3  Sandf. 
Cha.  192. 

Where  a  mortgage  \s  made  to  a  surety,  for  the  purpose  of  indemnifying  hira  for  his  liability 
on  account  of  the  mortgagor,  similar  equitable  rules  are  applied,  as  in  tlie  case  above  referred 
to,  of  a  mortgage  accompanied  by  other  security  to  the  mortgagee.  It  is  held,  that  such  a 
mortgage  is  in  reality  a  security  for  the  delit  itself;  to  the  benefit  of  wliicii  the  creditor  is 
entitled.  But  he  cannot  make  a  claim  upon  it  till  the  indorser's  liability  is  fixed,  and,  if  the 
lattfr  is  di.scliarged  by  his  laches,  he  loses  all  title  to  tlie  properly.  Hoiabird  v.  Burr,  17 
Conn.  55G;  Reinliard  v.  Bunk.  &c.,  6  B.  Mon.  252;  Miller  v.  Musselman,  6  Whart.  354; 
Lewis  V.  DeFore.<»t.  20  Conn.  427  ;  Stockard  v.  Stockard,  7  Humpli.  303  ;  Moore  v.  Moberly, 
7  B.  .Mon.  299;  Davis  v.  Mills,  18  Pick.  394;  Goodiiuo  v.  Berrien,  2  S.uidf.  Cha.  630;  Til- 
ford  V.  Ja:nes,  7  B  Mon.  336;  Sliepanl  v.  Shepard,  6  Conn.  37  ;  Curtis  v.  Tyler,  9  Paige, 
432  ;  p:Mstmaa  v.  Foster,  8  Met.  19 ;  Yelverton  v.  Shelden,  2  Sandf.  Cha.  481 ;  Irwin's,  &.Q. 
V.  Longworth,  20  Ohio,  581 :  Knox  v.  Moatz,  3  Harr.  74:  Stewart  v.  Preston,  1  Branch, 
10;  Kramer  v   Bank,  &c.,  15  Ohio,  253. 

Somewhat  analogous  to  the  case  of  successive  mortgages,  is  that  of  a  conveyance  by  the 
mortgagor  of  a  portion  of  the  mortgaged  land,  retaining  the  remainder;  or  the  conveyance 
of  dilTorerit  porlions,  included  in  one  mortgage,  to  successive  purchasers,  and  the  apportion- 
ment of  the  mortgage  debt  uoon  such  parcels,  respectively.  Tlie  general  rule  upon  this 
subject  is,  that,  if  the  mortgagor  conveys  a  part  of  the  land,  retaining  the  rest,  tlie  part 
retained  is  primarily  liable,  and  the  portions  conveyed  are  liable  in  the  inverse  order  of 
•their  alienation.  And  the  latter  branch  of  the  rule  applie.'*,  where  the  whole  land  is  succes- 
sively conveyed.  Ferguson  v.  Kimball,  3  Barb.  Cha.  616;  Cushing  v.  Aycr,  25  Maine,  383; 
Kellogg  V.  Rand,  11  Paige,  59;  Gumming  v.  Cumining,  3  Kellj',  460;  Knickerbackcr  v. 
Boutwi^ll.  2  Sandf.  Cha.  319  ;  Henklo  v.  All.stadt.  4  Gratt.  264;  Skeel  v.  Spraker,  8  Paige, 
182;  Schryvcr  v.  Teller,  9  Paige,  173;  Sliep.rd  v.  Adams,  32  Maine,  63;  .Morris  v.  Oak- 
ford,  9  Barr,  499;  Charaplin  v.  Williams,  lb.  341 ;  Blyer  v.  Mouholiand,  2  Sandf.  Ch.  478; 


438 


MORTGAGE— ASSIGNMENT, 


[CHAP.  XXXIII. 


CHAPTER   XXXIII. 

MORTGAGE— ASSIGNMENT,  PAYMENT,  RELEASE,  ETC..   OF  MORTGAGES, 
AND  TRANSFERS  OF  EQUITIES  OF  REDEMPTION. 


1.  Mortga.Q:e   cannot  be  assigned  without 

the  debt. 

2.  Assignment  cannot  prejudice  the  mort- 

gagor— notice,  &c. 
6.  Mortgage   an   incident   to   the   debt — 

principle    considered — and    whether 

paj-ment    revests    the   estate   in  the 

mortgagor. 
15.  Discliarging  mortgage  upon  the  record. 
18    Release  of  t-quity — whetiier  a  payment. 
21.  Release  of  mortgage — release  in  part. 

23.  Dq)osit  of  money  with  mortgagee — no 

payment. 

24.  Death   of  mortgagor   does   not  turn  a 

mortgage  into   payment — practice  in 
case  of  insolvency. 


25.  Discharge  of  execution — not  conclusive 

of  discharge  of  mortgage. 

26.  Payment  on  mortgage,  cannot  be  applied 

to  other  debts. 

28.  Substituting  of  one  security  for  another, 
&c. — in  general,  no  payment  of  mort- 
gage. 

34.  Assignment  and  discharge  of  mortgage 
— when  a  transfer  will  be  construed  as 
an  assignment,  and  when  as  a  dis- 
charge. 

54.  Satisfied  mortgage — whether  a  stranger 
may  set  it  up. 

56.  Sale  by  mortgagor  with  mortgagee's 
consent.    • 

58.  Joint  release  to  mortgagee  and  mort- 
gagor. 


1.  It  is  said,  a  mortgagee  cannot  transfer  his  estate,  separate  from 
the  debt,  either  absolutely  or  for  security  ;  especially,  before  it  becomes 
absolute,  or  there  has  been  a  foreclosure. (1) 

2.  If  the  mortgagee  assign  his  mortgage,  the  assignee  can  claim  only 
what  really  remains  due  upon  it  when  assigned ;  not  what  appears  to 
be  due.  For  this  reason,  in  England,  it  is  usual  to  make  the  mortga- 
gor a  party  to  such  assignment,(2) 

8.  Any  payment  to  the  mortgagee,  after  assignment,  but  before  notice 
of  it,  will  be  effectual  against  the  assignee  ;  and  it  is  held,  that  regis- 
tration is  not  sufficient  notice  of  an  assignment  as  against  the  mortga- 
gor, though  sufficient  to  bind  subsequent  purchasers.(3) 

4.  Hence  it  appears,  that  all  dealings  with  the  mortgagee,  even  in 
his  character  of  mortgagee,  before  notice  of  the  assignment,  are  valid. (4) 

5,  A  fortiori  is  this  rule  applicable,  where  the  mortgagee  has  assumed 


(1)  Aymar  v.  Bill,  5  John.  Cha.  570.  But 
see  ch.  32,  .sees.  11-13. 

(2)  Matthews  v.  Wallwyn,  4  Yes.  118. 

(3)  Williams  v.  Sorrell,  lb.  389  ;  James  v. 
Johnson,  6  John.  Cha.  428.  In  New  York, 
this  is  expre.=sly  provided  by  statute.  1  N. 
Y.  Rev.  St.  763  ;  ace.  Napier  v.  Elam.  6  Yerg. 
108;  Hodgden  v.  Naglee,  5  Watts  &  S.  217. 

(4)  4  Yes.  427.  See  Glidden  v.  Hunt,  24 
Pick.  221;  Clark  i).  Flint,  22,  231;  Cham- 
bers V.  Goldwin,   1  Smith,  252 ;  Williams  v. 


Stevens,  1  Halst.  Cb.  119;  Wolcott  v  Sulli- 
van, 1  Edw.  399  ;  Palmer  v.  Yate.s.  3  Sand£ 
137  ;  Bree  v.  Holbecii,  Dougl.  655  ;  Hammond 
V.  Washington.  1  How.  14;  Moore's,  &c.,  7 
W.  &  S.  298 ;  Bowes  v.  Seeger,  8  W.  &  S.  222 ; 
Mott  V.  Clark,  9  Barr,  399  ;  Farmers,  &c.  v. 
Douglass,  11  S.  &  M.  469  ;  Peabody  v.  Fenton, 
3  Barb.  Cha.  451;  Williams  v.  Birbeck,  1 
Hoflfm,  Ch.  R.  359 ;  Noys  v.  Clark,  7  Paige, 
179;  Van  Hook  v.  Somerville,  &c.  1  Halst. 
Ch.  633  ;  Deming  v.  Comings,  11  N.  H.  474. 


Gushing  v.  Ayer,  25  Maine,  383  ;  Johnson  v.  White,  11  Barb.  194;  Howard.  &c.  v.  Halsey, 
4  Sandf.  565.  As  to  the  effect  of  a  release  by  the  mortgagee  of  a  part  of  the  land  mort- 
gaged, see  Shepherd  v.  Adams,  32  Maine,  63 ;  McLean  v.  Lafayette,  &c.,  3  McL.  587  ; 
Pa.xlon  v.  Harrier,  1  Jones,  312 ;  Holman  v.  Bank.  &c.,  12  Ala.  369  ;  Howard,  &c.  v.  Halsey, 
4  Sandf.  565  ;  Patty  v.  Pease,  8  Paige,  277  ;  Stuyvesant  v.  Hall,  2  Barb.  Cha.  151 ;  Engle 
V.  Haines,  1  Halst.  Cha.  186 ;  Ross  v.  Haines,  lb.  632;  Meney,  4  Barr,  SO ;  Wheelwright  v. 
Loomer,  4  Edw.  Cha.  232. 

See,  also,  somewhat  qualifying  the  general  rule,  Beall  v.  Barclay,  10  B.  Men.  261. 


CHAP.  XXX rii.] 


PAYMENT,  ETC. 


iS9 


to  be  absolute  owner  of  the  land,  by  liaving  purcbased  the  ecjuity  of  re- 
demption. Hence,  if,  after  such  purchase,  he  assign  the  mortgage  as  a 
subsisting  incumbrance,  and  then  convey  the  whole  estate  to  a  tiiird 
person,  equity  will  not  allow  the  assignee  of  the  mortgage  to  do  what 
the  assignor  could  not  have  done,  by  interj)osing  a  dormant  mortgage 
to  the  })rejudice  of  an  ignorant  ))iirchaser;  to  do  that  indirectly,  by  a 
secret  assignment,  which  he  could  not  do  directly. (1) 

6.  In  confnrmity  with  the  principles  stated  in  the  last  chapter,  it  is 
said,  by  Lord  Manslield,  that,  where  a  debt  is  secured  by  mortgage,  the, 
assigninentof  the  debt,  or  forgiving  it,  will  draw  the  land  after  it,  though 
the  debt  were  forgiven  only  by  parol ;  that  whatever  would  give  the 
money,  will  carry  the  estate  in  the  land  along  with  it  to  every  pur[)Ose, 
and  tiiat  the  estate  in  the  land  is  the  same  thingasthe  money  due  u[)OQ 
it.  Uj)on  a  similar  principle,  a  simjjle  contract  debt  has  been  held  not 
to  acquire  the  character  of  a  specialt}^,  in  consequence  of  being  secured 
by  mortgage. (2) 

7.  These  remarks,  however,  are  to  be  considered  as  rather  illustra- 
tive of  the  general  qualities  of  a  mortgagee's  estate,  than  as  literally 
true  under  all  circumstances.(a)  It  seems  to  be  only  where  the  condi- 
tion of  a  mortgage  is  performed  strictly  at  the  time,  or  before  the  time^b) 
that  the  title  will  ipso  facto  revest  in  the  mortgagor.  If  the  debt  be  paid 
after  the  dajj,  the  mortgagee  becomes  a  trustee  in  equity,  and  may  be 
compelled  by  a  bill  to  reconvey  ;  the  necessity  for  which,  however, 
shows  that  the  legal  title  is  in  him.  So,  a  term  becomes  absolute,  and 
must  be  surrendered  or  assigned. (c) 

8.  The  mortgagor  cannot  maintain  an  action  of  trespass  against  the 
mortgagee  or  any  one  holding  under  him,  though  the  debt  have  been 
paid.(3) 

9.  In  Ciise  of  ancient  mortgages,  a  reconveyance  may  be  presumed. (4) 

10.  Upon  the  point,  however,  whether  mere-payment  of  the  debt  will 
revest  the  estate  in  the  mortgagor,  there  seems  to  be  a  conflict  of  the 
American  authorities. (5) 

1 1.  In  Maine  and  Massachusetts,  after  payment  of  the  mortgage  debt, 
the  mortgagee  cannot  maintain  a  writ  of  entry  for  the  land,  for  the  rea- 
son, that  in  such  case  he  could  not  recover  i\iQ  conditional  judgment  ^ro- 


(1)  6  John.  Cha.  427. 

(2)  Martin  v.  Mowlin,  2  Burr.  978.  See  1 
Ilalst.  4" J.  Also,  cli.  32,  sec.  15;  Grinnell». 
Baxter.  17  Pick.  383. 

(3)  Howe  V.  Lewis,  14  Pick.  329, 

(4)  2  Cruise,  8G. 

(5)  Jackson  t'.  Davis,  18  Jolin.  7  ;  Wentz 
I'.  Dehaven,  1  S.  &  R.  312;  1  Ilaist.  171; 
Morgan  v.  Davis,  2  Har.  Jk  McU.  17  ;  Perkins 


V.  Dibble,  10  Ohio.  433.  See  Upliam  t'.  Brooks' 
2  W.  &  M.  407  ;  Cutler  v.  Lincoln,  3  Cusli* 
128;  Doton  v.  Russell,  17  Conn.  146;  Post  t)" 
Arnot,  2  Denio,  344:  Wolfe  v.  Dowell,  13  Sm" 
&  M.  103;  Hadlock  v.  Bulfinch,  31  Maine* 
246;  Webb  V.  Flanders,  32,  175;  Williams  v' 
Thurlow,  31,  392;  Jennings',  &c.  v.  Wood* 
20  Oino,  261  ;  Bassett  v.  Mason,  18  Conn' 
131. 


(a)  ^36  Mr.  Justice  Wilde's  criticism  upon  them.     Parsons  v.  "Welles,  17  Mass.  424. 

(b)  Mortgage  trora  A  to  B,  to  secure  several  nole.<!,  payable  at  different  times,  and  afler- 
wanis  Ironi  A  to  C.  Subsequently,  and  before  maturity  of  either  of  the  above  notes,  A  gave 
B  a  warranty  deed  of  the  land,  in  full  satisfaction  and  dischar<;eof  them  and  of  another  note. 
.\11  the  notes  were  .surrendered  to  A.  but  the  mortgage  was  not  discharged.  C  brings  a  bill 
in  equity  to  redeem  against  B.  Held,  B's  title  under  his  mortgage  was  defeated ;  if  C'a 
niorigago  was  valid,  he  had  by  writ  of  entry  a  complete  and  adequate  remedy  at  law  against 
B  ;  and,  therefore,  the  bill  couM  not  be  sustained.     Holman  v.  Bailey.  3  Met.  55. 

(c)  .\n  acknowledgment,  written  on  the  back  of  a  mortgage,  under  hand  and  seal,  of  pay- 
ment and  fulfilment  of  the  coudition,  is  a  good  discbargo,     AUard  v.  Lane,  6  Shcpl.  9. 


440 


MORTGAGE— ASSIGNMENT, 


[CHAP.  XXXIII. 


vided  by  statute.  But,  on  the  other  hand,  in  these  States,  and  also  in 
Connecticut,  the  mortgagor  cannot  maintain  this  action  against  the 
mortgagee,  the  hitter  being  in  possession.  His  only  remedy  is  by  a 
bill  in  equity.  These  points  will  be  further  considered  hereafter.  (See 
ch.  '67,  s.  3.) 

12.  In  New  Hampshire,  New  York  and  Maryland,  a  tender,  even 
after  condition  broken,  revests  the  estate  in  the  mortgagor.  The  statute, 
in  New  Hampshire,  provides  for  a  redemption,  within  one  year  after 
entry  for  condition  broken,  and  that  the  mortgage  shall  become  "  ut- 
terly void. "(a)  Nor  is  this  construction  controlled  by  other  provisions, 
that  the  mortgagee  shall  release  upon  the  record,  and  that  money  ten- 
dered shall  be  paid  into  Court ;  because,  these  apply  equally  to  a  ten- 
der before  breach  of  condition,  and  are  designed  merely  to  perj^etuate 
the  evidence  of  payment  in  favor  of  the  mortgagor.(l) 

13;  Mere  possession  of  the  obligation  which  a  mortgage  is  given  to 
secure,  by  a  party  claiming  the  land,  will  not  be  a  sufficient  ground  of 
befence  against  a  suit  by  the  holder  of  the  mortgage.  Thus,  in  a  suit 
by  the  assignee  of  a  mortgage  against  a  stranger  in  possession,  the  latter 
produced  the  notes  secured  by  such  mortgage,  but  no  discharge;  and 
the  evidence  stronglj^  tended  to  prove,  that  the  notes  could  not  have 
been  paid  to  any  lawful  holder  or  assignee  of  the  mortgage.  Held,  a 
discharge  of   the  mortgage  should  not  be  presumed. (2) 

14.  Entry  of  satisfaction  on  the  back  of  a  mortgage  discharges  it.(3) 

15.  Chancery  will  decree  satis  faction  of  a  mortgage  which  has  been 
paid,  so  that  it  may  be  cancelled  on  the  record. (4) 

16.  In  the  States  of  Massachusetts,  Maine,  New  Hampshire,  (where, 
after  payment  or  tender,  the  court  may  decree  a  discharge,  and  a  copy 
of  the  decree  shall  be  recorded,)  Vermont,  Ehode  Island,  Pennsylvania, 
Delaware,  South  Carolina,  Alabama,  Indiana,  Illinois,(&)  Missouri,  Ar- 
kansas, Michigan,  (upoT\  certificate  from  the  mortgagee,  acknowledged, 
&c.,  like  deeds,)  statutory  provision  is  made,  for  discharging  mortgages 
upon  the  margin  of  the  public  record. (5)  In  Pennsylvania,  Illinois, 
Missouri  and  Alabama,  the  mortgagee  shall  enter  such  discharge  in 
three  months  from  demand,  (or,  in  Missouri,  give  a  release,)  under 
penalty  of  forfeiting  a  sum  not  exceeding  the  whole  debt.  In  South 
Carolina,  in  three  months  from  demand  of  any  party  interested  in  the 
estate,  under  penalty  of  one-half  the  debt.  In  Arkansas,  within  sixty 
days ;  in  Rhode  Island,  Vermont  and  New  Hampshire,  in  ten  days 


^  (1)  Wadeu.  Howard,  11  Pick.  297;  2  Har. 
&  McH.  17  ;  Yose  v.  Handy,  2  Greetil.  322  ; 
Parsons  v.  Welles,  17  Mass.  419;  Grny  v. 
Jeriks,  3  Mass.  520;  Smith  v.  Vincent,  15 
Conn.  1 ;  Swett  v.  Horn,  1  N.  H.  332  ;  Far- 
mers', &c.  V.  Edwards,  26  Wend.  541. 

(2)  Crocker  v.  Thomp.son,  3  Met.  224. 

(3)  Allard  v.  Lane,  18  Maine,  9. 

(4)  Kellogg   V.   Wood,  4  Paige,  578.     See 
Barnes  v  Caraark,  1  Barb.  392. 

(5)  Purd.  Dig.  19G;  Mass.  Rev- Stat.  408  ; 


1  Verm.  L.  194,  195  ;  (See  lb.  1337.  6.)  Aik. 
Dig.  94;  S.C.St.  Dec.  1817,  p.  26;  Ind.  Kev. 
L.  272  ;  Illin.  Rev.  L.  510 ;  R.  I.  L.  205,  206 ; 
Dela.  Rev.  L.  1829,  92;  Misso.  St.  409,410; 
Mich.  St.  1839,  219  ;  N.  H.  Rev.  St.  245,  246; 
Verm.  lb.  316;  Verm.  L.  1837,  6,  7.  See 
King  V.  McVickar,  3  Sandf  Ch.  192  ;  McLean 
V.  Lafayette,  &c.,  3  McLean,  587  ,  Haskell  t'. 
Haskell,  3  Cuah.  540 ;  Patch  v.  King,  29 
Maine,  448. 


(a)  By  the  Revised  Statutes  it  becomes  void,  on  performance  of  condition,  with  payment 
of  damages,  &c.,  arising  from  breach,  or  a  tender  thereof.     Rev.  St.  245. 

(ff)  111  this  State,  a  release  by  deed,  attested  by  one  witness,  and  acknowledged  like  other 
conveyances,  is  also  provided  by  statute.     St.  1838-9,  197. 


CHAP.  XXXIII.]  PAYMENT,  ETC.  441 

from  deman«l;  in  Massachusetts,  seven  days;  in  Delaware,  sixty  days, 
under  penally  of  paying  all  damage;  or,  in  Delaware,  a  fixed  sura, 
with  treble  costs  in  iihode  Island.  And  the  same  provision  is  made 
in  the  latter  State,  in  ease  of  a  refusal  to  execute  a  release  of  the  mort- 
gage. The  statute,  however,  is  not  to  imj)air  the  effect  of  any  other 
legal  discharge,  payment,  satisfaction  or  release,  in  Khode  Island.  la 
Vermont,  the  mortgagor  may  have  a  discharge,  witncbsetl,  upon  the 
deed  itself,  to  be  recorded  in  the  margin  of  the  records. 

17.  in  Indiana,  the  register  of  deeds  may  discharge  a  mortgage,  on 
the  exhibition  of  a  certificate  of  payment  or  satisfaction,  signed  by  the 
}iwiii/it;/o)\  {(jn.  inortgngee  ?)  or  his  lepresentative,  and  attached  to  the 
moii<rat>-e,  which  shall  be  recorded.  A  similar  provision  in  New 
York.(l) 

18.  Where  a  mortgagor  releases  his  equity  of  redemjjtion  to  the 
mortgagee  by  warranty  deed,  made  for  full  consideration,  this  is  i)re- 
suraed  to  be  a  payment  of  the  mortgage  debt,  unless  there  be  clear 
proof  to  the  contrary  ;  and  the  presumption  is  strengthened  by  the 
lapse  of  more  than  six  years  from  the  purchase.(2)(«) 

19.  It  has  been  suggested  as  a  questionable  point,  whether,  by  a  pur- 
chase of  the  equity  of  redemption  in  a  part  of  the  land,  the  mortgage 
is  not  extinguished  as  to  the  whole  ;  upon  the  principle  that  a  contract 
cannot  be  apportioned,  and  in  analogy  with  the  well  settled  rule,  as  to 
a  purchase  of  part  of  the  land  from  which  a  rent-charge  issue8.(3)  (See 
ch.  17,  sec.  82.) 

20.  It  has  been  said,  in  Vermont,  that  a  release  of  the  equity  of  re- 
demption to  thejmortgagee,  does  not  strengthen  his  legal  title.  But, 
in  South  Carolina,  although  the  mortgagor  is  expressly  declared  to  be 
legal  owner  of  the  land,  a  release  to  the  mortgagee  will  give  him  the 
Avhole  estate. (4) 

2 1.  A  formal  relea.se,  by  the  mortgagee,  of  a  part  of  the  land  from  the 
mortgage,  does  not  discharge  the  rest  of  the  land.(5)(i)  And,  where  the 
same  party  holds  two  mortgages,  embracing  the  same  land,  and  exe- 
cutes a  partial  release  of  each  ;  if  other  transactions  and  instruments 
between  the  parties  show  such  to  be  the  intent,  the  releases  will  oper- 
ate to  transpose  and  substitute,  but  not  to  discharge  the  respective  se- 
curities. 

22.  A  conveyed  to  B  an  undivided  moiety  of  certain  land,  taking 
back  a  mortgage  for  the  price,  and  afterwards  covenanted,  upon  request, 


(1)  1  N.  Y.  Rev.  St.  761;  Ind.St.  1836,  64.  [  679;  White  i-.  Todd,  10  Mi,«.  189;    Longstreet 

(2)  Burnet  v.  Deniiislon,  5  John.  Clia.  35  ;    v  Shipman.  1  Halst.  Ch.  43. 

Miles  V.  Comstock,  II).  214.     See  Shelton  v.  j      (3)  James  v.  Johnson,  G  John.  Ciia.  426. 
riampton,  6  Ired.  216;  Klock  u.  Kronkhite,  I      (4)  Eiithorp    v.    Dewing,  1  Chip.    141  ;   1 
1  mil.  107  ;  Brewer  v.  Staples,  3  Sandf.  Cha.    Brev.  177  ;  Ti.ylor  y.  Stockdale,  3  M'Cord,  302. 

I      (5)  Gulp  V.  Fisher,  1  Watts,  494. 


(a)  But  where  k  mortgagor,  by  deed  of  sale  and  quit-claim,  for  valuable  consideration 
therein  expressed,  conveyed  llie  land  to  the  mortgagee;  held,  no  intention  being  shown  to 
pay,  by  such  conveyance,  the  notes  secured  by  the  mortgage,  they  might  still,  if  outstanding, 
be  collected  or  negotiated.  Van  Deusen  v.  Friuk,  15  Pick.  449.  See  Galium  v.  Enianuol, 
1  Alab.  (N.  S.)  23. 

(b)  A  parol  consent  of  the  mortgagee  to  a  sale  of  a  part  will  operate  as  a  release.  Laugh- 
lin  V.  Ferguson,  6  Dana,  120.     See  Proctor  v.  Thrall,  22  Verm.  262. 


442  MORTGAGE— ASSIGNMENT,  [CHAP.  XXXIII. 

to  execute  all  conveyances  requisite  for  a  partition.  He  subsequently 
conveyed  the  other  moiety  to  C,  taking  back  a  mortgage  for  the  price. 
B  and  C  then  exchanged  deeds  of  partition,  in  aid  of  which,  A  relea.sed 
the  divided  moiety  of  each  grantee  from  the  other's  mortgage.  Held, 
such  releases  did  not  extinguish  the  mortgages  as  to  one-half  of  each 
divided  moiety,  but  the  whole  divided  moiet}^  of  each  grantee  became 
subject  to  his  mortgage,  as  his  undivided  moiety  was  before.(l)(a) 

2'6.  The  depositing  of  money  with  the  mortgagee,  accompanied  with 
the  note  of  a  third  person,  upon  payment  of  which  the  money  is  to  be 
restored,  does  not  constitute  payment.  Thus,  a  mortgagor  sold  the 
land,  receiving  in  payment  the  purchaser's  note,  and  agreeing  to  extin- 
guish the  mortgage.  He  delivered  the  note  to  the  mortgagee,  with  an 
agreement  that,  if  paid,  the  proceeds  should  pay  the  mortgage ;  and  he 
also  left  the  sum  due,  with  the  agreement  that  it  should  not  be  apiylied, 
but  merely  to  stop  the  interest.  The  mortgagee  receipted  for  the 
money.  The  note  was  not  paid.  Held,  these  facts  did  not  constitute 
a  payment  of  the  mortgage. (2) 

24.  The  death  of  a  mortgagor  does  not  have  the  effect  of  turning  the 
mortgage  into  payment  of  the  debt,  wholly  or  2'^'''o  (anlo.  Hence,  in 
New  Hampshire  and  Connecticut,  where  a  mortgagor  dies  insolvent, 
the  course  is  to  have  the  whole  debt  allowed  by  the  commissioners  of 
insolvency,  and,  after  receiving  his  dividend,  the  mortgagee  shall  hold 
the  land  fbr  the  balance.     Nor  will  the  fact,  that  the  mortgagee  has  pur- 

(1)  Bradley  v.  Fuller,  23  Pick.  1.  i      (2)  Howe  v.  Lewis,  14  Pick.  329.     But  see 

Tollv  Hiller,  II  Paige,  228. 


(a)  A,  holding  land  subject  to  mortgage,  conveyed  a  part  of  it  to  B,  afterwards  received 
the  price,  and  then  conveyed  the  remainder  for  its  full  value  to  C,  under  an  agreement  that 
the  whole  price  should  go  to  pity  the  mortgage,  and  G's  portion  be  released  therefrom, 
which  was  accordingly  done  by  the  mortgagee.  Held,  the  mortgage  still  remained  a  lien 
upon  B's  part  of  the  land      Patty  v.  Pease,  8  Paige,  277. 

A,  having  an  undivided  share  of  a  township,  made  a  mortgage  of  it  to  B,  and  it  was  after- 
wards divided  by  process  of  partition.  Held,  B  should  hold  A's  portion  of  the  land.  Ran- 
dell  V.  Mallett,  2  Shepl.  51.  In  Equity,  as  has  bee  seen,  (p.  337,  n,)  it  is  an  established  rule, 
that  where  a  creditor  has  a  lien  on  several  parcels  of  land,  some  of  which  belong  to  the  party 
equitably  liable  for  the  debt,  and  others  have  been  sold  by  liim  ;  such  debt  shall  be  first  charged 
upon  the  portion  unsold,  and  then  upon  the  others  in  the  inverse  order  of  the  respective 
transfers.  Skeel  v.Spraker,  8  Paige,  182.  This  rule  applies  to  different  mortgages  ol  differ- 
ent dates.     Sohry-mer  V.  Teller,  9  Paige,  173.     See  Torrey  v.  Bank,  &c.,  lb.  649. 

"Where  A,  owning  land  subject  to  mortgage,  sells  a  part  of  it  to  B,  who  assumes  the  whole 
debt:  and  the  owner  of  the  remaining  portion  is  compelled  to  pay  it  ;  he  may  claim  an  as- 
signment of  the  mortgage  to  reimburse  him.  Halsey  v.  Reed,  9  Paige.  446.  In  such  case, 
under  the  revised  statutes,  (in  New  York,)  upon  a  suit  for  foreclosure,  chancery  may  make 
a  decree  over  against  B,  for  any  deficiency  in  the  mortgage  debt.  lb.  See  Rathbone  v. 
Clark,  9  Paige,  648. 

Where  two  tenants  in  common  mortgage  for  their  joint  debt,  ani  afterwards  make  parti- 
tion ;  tlie  part  set  off  to  each  sliall  be  sold  to  pay  one  half  the  debt,  in  the  inverse  order  of 
alienations,  made  sul^sequent  to  tlie  partition.  lb.  In  South  Carolina,  the  right  to  compel 
a  resort  to  one  particular  fund  among  several,  is  not  applied  in  favor  of  subsequent  incum- 
brancers or  general  creditors.  Bank  v.  Mitchell,  Rice.  389.  In  Connecticut,  tlie  law  does 
not  sanction  any  marshalling  of  securities,  in  case  of  successive  mortgages  on  the  same  pro- 
perty. The  claim  of  the  first  mortgagee  is  paid  in  full.  Mix  v.  Hotchkiss,  14  Conn.  32; 
Butler  V.  Elliott,  15,  187.  But  where  a  mortgagee  holds  other  securities  upon  a  bill  for 
foreclosure  brought  by  him,  other  mortgagees  maj'  require  that  he  make  use  of  such  securi- 
ties towards  the  discharge  of  his  debt.  Pettibone  v.  Stephens,  15,  19.  In  the  same  Slate, 
it  is  held,  that,  where  there  are  two  funds  for  payment,  one  creditor  can  compel  another  to 
resort  to  one  of  those  funds,  in  e.Kclusiou  of  the  other,  only  where  there  is  but  one  debtor, 
and  the  claims  against  the  funds  of  one.  Ayres  v.  Husted,  lb.  504,  See  al^o  Stamford  v. 
Benedict,  lb.  437  ;  Chester  v.  Wheelwright,  lb.  562. 


CHAP.  XXXIII.]  PAYMENT,  ETC.  443 

chased  Uie  equity  of  redemption,  make  any  (liffercnco,  Bui  in  Mas.«a- 
cliu.selts  the  practice  i.s,  to  allow  the  mortga^^ce  only  the  excess  of  the 
debt  over  the  value  of  the  mortua.iie.(a)  This  is  in  analo<fy  with  the 
En^rlish  practice  in  cases  of  bankruptcy.  And,  in  England,  the  m(jrt- 
gagee  will  be  allowed  to  prove  against  the  estate  of  the  deceased  mort- 
gagor only  what  remains  due  after  a  sale  of  the  land.(l) 

25.  Where  a  mortgagee  recovers  judgment  upon  the'debt  secured 
by  the  mortgage,  and  gives  a  receipt,  acknowledging  full  satisfaction, 
upon  the  execution  issued  on  such  judgment;  this  is  not  conclusive 
evidence  of  a  payment  and  discharge  of  the  mortgage.  Thus,  where 
the  judgment-debtor,  on  the  day  previous  to  giving  such  receipt,  con- 
veved  his  equity  of  redemption  to  a  third  person,  who,  on  the  same 
day  the  receipt  was  given,  conveyed  it  to  the  mortgagee  ;  held,  the 
payment  of  the  judgment  must  be  construed  only  as  an  intended  coq- 
iirmation  of  the  mortgagee's  title:  because  the  supposition  of  the  pay- 
ment of  money  would  involve  the  absurdity,  that  either  the  mort- 
gagor or  his  assignee  released  all  his  interest,  at  the  very  moment  when 
the  money  to  redeem  the  land  was  paid  to  the  person  taking  the 
release. (2) 

2(3.  Where  money  is  paid  by  one  person  interested  in  an  equity  of 
redemption,  to  obtain  a  partial  release  of  the  mortgage,  such  payment 
shall  be  applied  to  the  benefit  of  others  interested  in  the  equity,  and 
not  to  independent  claims  held  by  the  mortgagee. 

27.  A  mortgaged  to  B  two  distinct  parcels  of  land,  and  afterwards 
conveyed  one  of  them  to  C,  and  the  other  to  D,  B  released  to  D,  for 
a  certain  sum,  the  land  transferred  to  him,  C  afterwards  tendered  to 
Ba  sum  which,  with  the  amount  paid  by  D,  was  equal  to  tlie  whole 
debt  due;  but  B  claimed  the  right  to  apply  the  sum  paid  by  D  to  an 
independent  debt,  which  he  held  against  the  mortgagor.  Hell,  C  might 
redeem  the  estate.(3) 

28.  A  mortgage  being  given  as  security  for  a  debt,  and  not  merely 
for  any  particular  evidence  of  debt,  the  general  rule  is,  that  nothing  but 
actual  payment  of  the  debt  or  an  express  release  will  operate  as  a  dis- 
charge of  the  mortgage.  Thus,  where  the  mortgage  is  given  to  secure 
a  note,  which  is  afterwards  cancelled,  and  a  new  one  substituted,  the 
mortgage  will  stand  as  security  for  the  new  note.(4) 

29.  In  Massachusetts,  where  a  aote  is  held  to  be  prima  facie  payment 

(1)  Amory  v.  Francis,  16  Mass.  308 ;  Green- 1  8  B.  Mon.  287  ;  Bank,  &e.  v.  Pinch,  3  Barb, 
woo. i  V.  Taylor,  1  Russ.  &  M.  185;  Doe  v.  Glia.  293;  Hadlock  v.  Biiltinch,  31  Maine, 
McLoskey.'l  Alab.  (N.  S.)708;  Rowe  v.  246;  Buswell  u.  Davis,  10  X.  H.  424  ;  Euston 
Younp,  4  Y  &  Coll.  204.  See  Gradeii,  .tc.  v.  \  v.  Friday,  2  Ricli.  S.  C.  427  n. ;  Haniy  v.  Cora- 
Doe,  19  Verm.   463;   Findlay  v    Ilosmer,  2  1  moroia!,   ic,    10    B.    Mon.   98;    Flanders  v. 

Barstow,  0  Siiepl  357;  Hnj::unin  v.  St.irk- 
weatiier.  5  Gilm.  492 ;  McCormiok  v.  Di^'ley, 
8  Blackf.  99;  Now  Ilampsliire,  &c.  i;.  "Willard, 
10  N.  H.  210.     But  see  liolman  v.  Bailey,  3 


Conn.  350;   Farnuin  !'.  Bouteiie,  13  Met.  159. 

(2)  Perkins  I'   Pitts,  11  Mass  125. 

(3)  HicKs  v.  Bingham,  11  Mass.  300. 

(4)  Elliot  V.  Sleeper,  2  N  II.  525;  Crosby 
V.  Chase,  5  Shepl.  369  ;  Davis  v  Maynard,  9  |  Met.  55  ;  Bonham  v.  Galloway,  13  Illin.  68  ; 
Ma.ss.  247  ;  Williams  v.  Little,  12  N.  II.  29.  Purser  v.  Anderson,  4  Edw."  Clia.  17  ;  Mc- 
See  Gru>,'eon  V.  Gerard,  4  Y.  &,  Coll.  119 ;  Given  r.  Wheeloek.  7  Barb.  22;  Boston,  Ac. 
Teed  v.  Carruthers,  2  Y.&  Coll.  Cha.  31 ;  Morse    v.  King,  2  Cusli.  400. 

V.  Clayton,  13  Sm.  &  M.  373;   Burdetti).  Clay,  I 

(a)  If  personal  property  is  pledged,  with  a  power  of  sale,  the  property  must  be  sold,  or 
its  value  legally  ascertained,  before  the  claim  cau  be  allowed  against  tlio  estate.  Middlesex, 
&.C.  V.  Miuot,  4  Met.  325. 


444  MORTGAGE— ASSIGNMENT,  [CHAP.  XXXIIL 

of  a  debt,  a  new  note,  substituted  for  an  old  one  which  was  secured  by 
mortgage,  though  given  to  an  assignee  of  the  mortgage,  will  be  sub- 
ject to  the  same  security,  if  not  intended  as  payment ;  as  between  the 
mortgagee  and  mortgagor,  or  parties  claiming  under  them.  Whether 
in  relation  to  purchasers  from  the  mortgagor,  qu-{\-) 

30.  A  mortgaged  land  to  B,  to  secure  the  amount  of  a  certain  note, 
which  he  afterwards  took  up,  and  gave  a  new  one.  C  purchased  the 
land  bona  fide  from  A,  who  delivered  to  him  the  original  note,  which 
he  had  taken  up.  C  brought  a  bill  in  equity  against  B,  for  a  convey- 
ance free  from  his  mortgage ;  but  the  bill  was  dismissed.(2)(a) 

81.  A  mortgaged  to  B.  C,  a  creditor  of  B,  afterwards  summoned  A 
in  a  trustee  process  against  B,  recovered  judgment  against  A,  and  com- 
mitted him  upon  execution,  but  afterwards  gave  him  a  release  of  the 
judgment.  B  brings  ejectment  upon  the  mortgage.  Held,  these  facts 
constituted  no  defence  to  the  action.(3) 

32.  Nor  will  the  giving  of  new  security  for  the  mortgage  debt 
operate  to  discharge  the  mortgage,  though  it  be  of  a  higher  nature  than 
the  original  security  ;  as  a  recognizance,  for  a  simple  contract. (4) 

33.  But,  it  seems,  where  a  judgment  has  been  recovered  upon  the 
debt,  a  release  of  the  judgment  will  discharge  the  mortgage.(5) 

34.  It  is  a  question  of  very  frequent  occurrence,  whether,  under  the 
particular  circumstances  of  a  case,  the  transfer  of  a  mortgage  shall  be 
considered  an  assignment,  by  which  the  mortgage  is  preserved  as  a  lien 
or  incumbrance  upon  the  land  ;  or  as  a  discharge  or  extingrdshment, 
which  relieves  the  land  from  incumbrance,  and  lets  in  other,  and  pre- 
viously posterior  claims. 

35.  Upon  the  principle,  that  an  equitable  title  merges  in  the  legal 
title,  where  both  become  vested  in  the  same  person  ;  if  the  holder  of 
an  equity  of  redemption  pay,  and  take  an  assignment  of  the  mortgage, 
the  latter  is  extinguished,  unless  he  has  some  beneficial  interest  in  keep- 
ing it  alive.  A  court  of  equity  will  keep  an  incumbrance  alive  or 
consider  it  extinguished,  as  will  best  serve  the  purposes  of  justice,  and 

(1)  Watkins  v.  Hill,  8  Pick.  522.  ,      (4)  Davis  i;.  Maynard,  9  Mass.  247. 

(2)  Bolles  V.  Chauncey,  8  Conn.  390.  (5)  Perkins  v.  Pitts,  11  Mass.  125. 

(3)  Gary  v.  Prentiss,  7  Mass.  63.  | 


(a)  A  note,  given  to  a  feme  sole,  and  secured  by  mortgage,  was,  after  her  marriage,  given 
up  10  the  mortgagor,  and  a  new  one  taken  by  the  husband  for  the  amount  then  due.  Held, 
the  mortgage  was  not  discharged  as  against  a  purchaser  from  the  mortgagor.  Pomroy  v. 
Rice,  16  Pick.  22.  Mortgage  by  A  to  B,  conditioned  to  pay  B  the  contents  of  a  note,  pay- 
able on  demand,  signed  by  A  as  principal  and  B  as  surety,  or  indemnity  B  against  his  liability 
thereupon.  The  note  was  afterwards  taken  up,  by  the  suVislitution  of  a  new  one,  signed 
by  A  and  other  sureties;  and.  subsequently,  B  assigned  the  mortgage.  Held,  the  condition 
was  performed,  and  nothing  passed  by  such  assignment.     Abbott  v.  Upton,  19  Pick.  434. 

A  gave  a  mortgage  to  B,  to  secure  a  note  payable  by  instalments.  The  first  being  due, 
B  demanded  payment,  saying  that  if  it  were  paid  he  could  sell  the  securities;  whereupon 
A  gave  a  negotiable  note  for  the  amount,  payable  in  four  months,  which  B  proposed  to  iiave 
discounted  at  a  bank.  At  the  same  time,  this  indorsement  was  made  upon  tlie  first  note: 
"  Received  the  first  instalment  on  the  within,  of  $402  78."  B  having  arterwards  assigned 
this  note  with  the  mortgage ;  held,  tlie  transaction  was  not  a  mere  change  of  security  for 
the  same  debt,  but  a  payment,  and  a  discharge  pro  tanto  of  the  mortgage.  Fowler  v.  Bush, 
21  Pick.  230. 


CHAP.  XXXIII.]  PAYMENT,   ETC.  446 

the  actual  and  just  intention  of  the  pal•t3^(l)(a)  It  will  sometimes  bold 
a  cliur^'c  extinguisheil,  where  it  would  subsist  at  law  ;  and  sometimes 
presc'ive  it,  where  at  law  it  would  be  merged.  With  relerence  to  the 
party  him.self,  it  is  said,  it  is  of  no  sort  of  use  to  have  a  charge  on  liis 
own  estate  ;  and,  where  this  is  the  case,  it  will  be  held  to  sink',  unless 
something  shall  have  been  done  by  him  to  keep  it  on  foot.  In  the  case 
of  cut  infant^  entitled  to  the  estate  and  also  to  a  charge' upon  it,  the 
court  will  keep  the  rights  distinct,  if  it  be  deemed  most  benelicial  for 
the  infant.  But  e({uity  will  not  recognize  as  a  beneficial  purpose,  the 
enabling  a  mortgagee,  after  he  has  purchased  the  equity  of  redemption, 
at  some  future  time  to  assign  the  mortgage,  lying  dead  in  his  possession, 
to  a  creditor,  instead  of  giving  a  new  mortgage.  On  the  contrary,  this 
purpose  is  j)regnant  with  fraud  and  imposition. (2) 

36.  Upon  the  20th  of  August,  1800,  A  mortgaged  to  B,  to  secure 
payment  of  $2,500  in  one  year.  In  1801,  C,  a  creditor  of  A,  caused 
his  equity  of  redemption  to  be  sold  on  execution,  and  became  himself 
the  purchaser.  In  December,  1806,  C  paid  and  took  an  assignment  of 
B's  bond  and  mortgage,  and  in  January,  1811,  conveyed  the  whole 
estate  to  D  for  $7,000,  with  warranty  against  incumbrances,  &c.  In 
March,  1810,  C  assigned  the  bond  and  mortgage  to  E,  to  secure  $35. 
The  assignment  was  acknowledged  after  the  deed  to  D,  and  D  in  his 
answer,  (probably  to  a  bill  for  foreclosure,)  stated  his  belief,  that  it  was 
mad>'  after  the  deed  to  him.  Held,  it  was  the  intention  of  C  to  extin- 
gulsli  the  mortgage,  inasmuch  as  he  could  have  no  object  in  keeping: 
alive,  and  the  bill  was  dismissed. (8) 

37.  On  the  other  hand,  when  the  transfer  to  the  mortgagor  is  ex- 
pressly designed  to  effect  another  object,  it  will  not  operate  as  an 
extinguishment. 

38.  A  mortgaged  to  B  and  to  C.  D  afterwards  extended  an  execu- 
tion U|)on  the  equity  of  redemption.  B  and  Centered  into  an  agree- 
ment with  A,  that  the  land  should  be  sold,  and  the  proceeds  npplied, 
first  to  their  mortgages,  then  to  the  execution  of  D.  The  land  was 
sold  accordingly  to  E,  who  paid  the  mortgage  debts,  and  the  balance 
of  the  proceeds  to  D.     D  was  privy  to  the  arrangement.     B  acknow- 

(1)  Starr  t).  Ellis.  6  John.  Clia.  39.5;  Bailey  ]  410;  Slocum  v.  Catlin,  22  Verm.  1.S7  ;  Mc- 
V.  "Will.ird,  8  N.  H.  429;   Cooper  v.  VVliiliiey,  |  Given  v.    Wlieeloek,    7    Barb.   29;    Loud  v. 
3  Hill,  9.5;  Moorey.  Harrisbur^r,  Ac,  8  Waus,  ;  Lane,    8    Met    517;    Brown   v.  Lapliain,    3 
133;    Poole  v.  Ilatliaway,  9  Siiepl.  85  ;   Hill  |  Cush.  554;   Kiiiiey  v.  Hill,  4  W.  &  S.  426. 
v.  SmitI),  2    M'L.  44t; ;    Hatch  v.  Kimball,  4.  ;       (2)  Forbes  v.   Moflatt,    18    Ye^.   jr.   384; 
14G;    Bank,  Ac.  v  Tarleion,   23   Mi.s.s.  173;  j  Compton  v.  Oxenden,  2  Ves.  jr.  2G1;  James 
Fryo  V   Bank,  .tc,  11  IMin.  367  ;  Robinson  v.    v.  Johnson,  6  John.  Cha.  425. 
Leaviit,  7  X.  H.  100;  Campbell  v.  Kni>rht3,        (3)  Gardner  t;.  Astor,  3  John.  Cha.  53. 
11  Shepl.  33'J;   Hcltnhold  v.  Man,  4  Whart.  I 

(rt)  Where  an  esUUe  and  the  charge  upon  it  become  united  in  one  person,  a  merjier  is 
presiimed.  A  transfer  to  a  trustee  is  iield  to  bo  evidence  against  suoli  presumption,  but  not 
conclusive.     Hood  v.  Phillips,  3  Beiiv.  513. 

Wlu-re  there  is  no  direct  proof  of  the  intention,  it  may  bo  inferred  from  circumstances, 
one  of  whijh  is  the  interest  of  the  party.  But  this  m.ay  be  rebutted  by  others.  The  party 
may  iiitL-nd  to  merjje,  upon  a  mistaken  view  of  his  interesU  He  may  judg'o  erroneously, 
knowiii;?  all  the  facts.  But  if  the  intent  is  clear,  a  mer;:er  will  take  place,  tbou-h  he  ex- 
pected advantafjes  which  he  does  not  realize.     Loomer  v.  Wheelrinlit.  3  Sandf.  Ch.  157. 

A  mortiT'i^'e  is  said  to  he  exiinfruished  by  payment  /mm  the.  debtor's  fiauLs.  Kinley  v. 
Hill,  4  W'.  A  .^.  426.  Thus,  where  a  mort/ajro  del)t  is  dischar^ced  by  a  bond  of  the  heirs,  who 
are  also  assiitneea  ol  the  mortira'_'e.  to  prevent  a  .sale  of  the  land,  the  mort.'age  is  also  dis- 
charged.    Robinson  v.  Leavitt,  7  N.  II.  73.     See  Hadley  v.  Chapin,  11  Paige,  245. 


416  MORTGAGE— ASSIGNMENT,  [CHAP.  XXXIII. 

ledged  upon  the  records  satisfaction  of  bis  mortgage,  and  C  released  to 
A  all  his  right  in  the  land.  On  the  same  day,  A  conveyed  with  war- 
ranty to  E.  Held,  without  reference  to  D's  knowledge  of  the  trans- 
action, the  effect  of  it  was  to  make  E  substantially  the  assignee  of  B 
and  C,  A  being  a  mere  instrument  for  effecting  the  assignment;  and  that 
D  was  not  entitled  to  the  land,  without  paying  the  mortgages  to  E.(l) 

89.  A,  being  a  first  mortgagee,  made  a  lease  of  the  land  to  B.  C,  a 
subsequent  mortgagee,  undertook  to  discharge  the  first  mortgage,  paid 
the  debt,  and  took  an  assignment  of  the  mortgage  and  lease,  for  the 
purpose  of  enabling  him  to  collect  the  rent.  Held,  no  extinguishment 
of  the  mortgage. (2)(a) 

40.  But  it  has  been  held,  that  where  a  purchaser  of  the  equity  of  re- 
demption takes  an  assignment  of  the  debt  for  which  the  mortgage  was 
given  as  security,  the  effect  is  the  same  as  if  the  mortgagor  himself  had 
done  it,  and  the  debt  is  to  be  considered  as  paid. 

41.  A  gives  to  B  a  note  and  mortgage,  and  then  conveys  the  land  to 
C.  C  pays  B  the  amount  due  him,  takes  an  assignment  of  the  securi- 
ties, and  then  brings  a  suit  against  A,  in  the  name  of  B,  upon  the  note. 
Held,  the  action  would  not  lie. (8) 

42.  Where  a  prior  incumbrancer  contracts  for  a  purchase  of  the  land 
in  discharge  of  his  debt,  and  assumes  the  payment  of  a  subsequent 
mortgage  as  a  part  of  the  consideration,  such  purchase  will  operate  as 
an  extinguishment  of  his  mortgage,  and  givepriorit}^  to  the  subsequent 
mortgagee. 

43.  A  mortgaged  to  B,  then  to  C,  and  then  charged  the  land  with 
another  debt  to  B.  A  and  C  afterwards  entered  into  an  indenture, 
which  set  forth  that  C  had  agreed  for  an  absolute  purchase  of  the  land 
for  a  certain  sum,  being  the  amount  of  all  the  debts,  out  of  which  he 
was  to  pay  a  certain  part  to  the  first  mortgagee^  and  retain  the  balance 
in  satisfaction  of  his  debt.  In  consideration  of  the  sum  named,  being 
the  amount  of  B's  two  claims,  the  payment  of  lohicli  C  assumed^  and  of 
C's  own  debt,  A  conveyed  the  equity  of  redemption,  subject  to  the 
mortgage  and  charge  of  B,  to  C,  and  C  covenanted  to  pay  B.  Held, 
C's  debt  was  hereby  extinguished,  and  that  B  might  maintain  a  bill  for 
foreclosure  upon  both  his  mortgages,  without  paying  it.(4)(6) 

(1)  Marsh  v.  Rice,  1  N.  H.  167.  f      (3)  Eaton  v.  George,  2  N.  H.  300. 

(2)  Willard  v.  Harvey,  5  N.  H.  252.  J      (4)  iTown  v.  Stead,  5  Sim.  535. 


(a)  If  a  second  mortgagee  purchases  the  equity  of  redemption,  and  pays  the  notes  secured 
by  tlie  first  mortgage,  no  a.-tion  lies  upon  the  notes  against  the  original  debtor  or  his  sure- 
ties.    Viles  V.  iloulton,  II  Verm.  470. 

If  a  mortgagee  jissign  his  mortgnge  as  security,  take  back  a  deed  of  the  land,  and  agree 
to  pay  tlie  assignee;  tliis  is  no  merger  of  the  mortgage.  Patty  y.  Pease,  8  Paige,  182.  So 
if  a  mortgagor  applies  to  a  tliird  person  for  money  to  pay  the  mortgage,  agreeing  to  give 
him  the  same  security  which  the  mortgagee  had,  and  on  receiving  the  money  pays  it  to  the 
mortgagee,  and  takes  an  assignment  to  the  lender;  this  is  no  discharge  of  tlie  mortgage. 
Wl)ite  V.  Knapp,  8  Paige,  173.  A,  a  mortgagee,  took  a  deed  of  the  land  from  B,  the 
mortgagor,  professing  to  be  designed  to  cancel  the  mortgage.  The  mortgage  and  notes 
remained  with  the  mortgagee,  upon  the  agreement  to  abide  the  event  of  an  attachment,  to 
which  the  land  was  then  subject.  An  execution  being  afterwards  levied  upon  it;  held, 
the  morlgage  was  not  discharged,  but  still  had  precedence  of  the  attachment.  Crosby  v. 
Chase,  5  tihepl.  3G9. 

(h)  An  estate,  subject  to  two  charges,  was  devised  to  A,  who  held  the  first  one.  Upon 
her  marriage,  a  settlement  was  made,  to  which  B,  the  holder  of  the  second  charge,  was  no 
parly,  whereby  it  was  agreed  that  the  first  charge  should  not  bo  raised.  Held,  B  should 
bold,  clear  of  the  first  charge.     Farrow  v.  Rees,  4  Beav.  18. 


CHAP.  XXXlir.]  PAYMKNT,  ETC.  4^7 

4.4.  Another  <,a'ucral  principle  on  this  subject  has  been  thus  stated. 
When  he  who  has  the  riyht  to  redeem  pays  the  mortgage-money,  the 
mortgage  is  discharged,  because  he  becomes  absolutely  seized — he  pays 
his  own  debt  on  his  own  accounr.  The  mortgage  is  extinguished, 
because  the  debt  is  paid  by  the  real  debtor  to  tJie  creditor.  But,  where  one 
owns  only  part  of  die  land,  as  he  might  pay  the  whole  and  call'Jbr  con- 
tributi«ni,  so  he  may  buy  in  the  mortgage. (1) 

45.  If  a  mortgagor  is  appointed  executor  of  the  mortgagee,  such 
appointment,  and  a  subsequent  conveyance  of  the  land  by  the  former, 
will  operate  as  an  extinguishment  of  the  mortgage, 

40.  A  mortgaged  land  to  B,  his  father,  as  security  for  a  bond.  B 
died  before  condition  broken,  having  appointed  A  his  executor.  A 
mortgaged  the  land  to  C,  with  the  usual  covenants  of  warranty,  and  C 
assigned  the  mortgage  to  D.  Afterwards,  A,  as  executor,  assigned  his 
own  mortgage,  given  to  B  in  his  lifetime,  and  the  accompanying  bond, 
to  E  ;  and  E,  in  a  suit  upon  the  mortgage  against  A  in  his  natural  ca- 
jnveity,  recovered  possession  of  the  land.  13  brings  a  suit  for  the  laud 
against  E.  Helil,  whether  the  mortgage  given  by  A  was  extinguished 
by  his  ai:^pointment  as  executor  or  not,  it  was  extinguished  by  his  con- 
veyance to  C.(2)(a) 

47.  A  deed  of  quit-claim,  given  by  the  mortgagee  to  a  purchaser  of 
the  equity  of  redemption,  in  which  he  covenants  only  against  the  acts 
of  those  claiming  under  himself,  may  operate  as  an  assignment  of  the 
niortgage.(8) 

4b.  After  attachment  of  land  under  mortgage,  the  mortgagee,  upon 
payment  of  his  debt  by  a  third  person,  and  with  the  mortgagor's  con- 
sent, gave  to  such  third  person  a  quit-claim  deed  of  the  land.  Held, 
this  operated  as  an  assignment,  not  an  extinguishment,  of  the  mortgao-e, 
and  a  levy  upon  the  land  by  the  attaching  creditor  did  not  give  him  a 
legal  title.  It  seems,  such  levy  passed  to  him  the  equity  of  redemption, 
and  he  might  bring  a  bill  in  equity  to  redeem. (4)(^i) 

49.  It  has  been  held  in  Massachusetts,  that  where  a  wife  joined  her 
husband  in  a  mortgage,  and  a  purchaser  of  the  equity  of  redemption, 
from  the  administrator  of  the  mortgagor,  paid  the  slim  due,  and  the 
mortgage  was  discharged  upon  the  record ;  the  widow  was  not  thereby  let 

(1)  Ta.vlort;.  Bassett,  3  N.  H.  298.  ^      (4)  Freeman  v.  M'Gaw,  15  Pick.  82.     See 

(2)  Ritcliiev.  Williams,  11  Mass.  50;  Ips- 1  Wilson  v.  Troup,  2  Cow.  195;  Olmsted  v. 
widi,  Ac.  r.  Story,  5  Met.  .310.  Klder,  2  Sandf.  325;  Crooker  v.  Jewell,  31 

(3)  Hunt  V.  Hunt,  14  Pick.  374.  Maine,  306 


(a)  So,  where  the  inort^'agor  was  appointed  admiiiistiator  o(  the  mortgagee,  and  returned 
an  iiivontory,  inolu>iing  tiio  morl'rago  debt,  and  an  account,  charging  himself  willi  tiie  per- 
sonal estate,  whereupon  there  was  u  decr^-e  ol  distribution  ;  held,  this  was  a  payment,  and 
the  administrator  could  not  afcerwarda  assign  the  mortgage.  Richie  v.  W.lliams,  i\  Mass  50. 
But  wiiere  certain  land  having  been  twice  mortgaged,  tiio  mortgagor,  after  condition  brok- 
en, was  appointed  administrator  of  the  second  mortgagee,  and  returned  an  inventory,  in- 
cluding the  debt  duo  from  himself;  held,  such  appointment  was  not,  in  respect  to  an  as- 
signee of  the  first  mortgage,  who  had  purchased  the  mortgagor's  right  of  redemption,  a 
piiyment  of  the  second  mortgagor's  del)t,  and  an  e.Ytinguishineut  of  the  mortgage,  but  that 
the  administrator  might  redeem  as  agwiiist  such  assignee.  Kinnev  v.  Ensign,  lb  Pick.  232. 
See  Ilou^h  v.  De  Fonst.  13  Conn.  472;  Milleri'.  Donaldson,  17  Ohio,  264." 

(h)  A  quit-claim  deed  from  the  mortgagor  to  the  mortgajree,  after  assignment  of  the  mort- 
gage, is  no  merger.  Pratt  v.  Bank,  &c.,  10  Verm.  293.  Where  the  assignee  of  a  mortgage 
takes  a  quit-claim  deed  ofone-half  of  the  land  ;  this  is  at  moat  an  extinguishment  of  only  a 
part  of  the  debt.     Klock  v.  Cronkhite,  1  Hill,  107. 


448  MORTGAGE— ASSIGNMENT,  [CHAP.  XXXIII. 

in  to  ber  dower,  the  discliarge  having  the  effect  to  pass  ilte  legal  interest 
to  the  hohler  of  the  equity,  and  thus  vesting  the  whole  estate  in  him.(l) 
But  this  doctrine  has  been  since  overruled,  and  sufh  a  discharge,  made 
by  the  mortgagee  to  an  execution  pui-chaser  of  the  equity,  held  an 
extinguishment  of  the  mortgage,  which  let  in  the  widow^  to  her 
dower.  (2) 

50.  The  purchaser  of  an  equity  of  redemption  at  an  execution  sale, 
who  afterwards  takes  an  assignment  of  the  mortgage,  may  recover 
possession  of  the  land,  by  a  suit  commenced  before  expiration  of  the 
year,  within  which  the  mortgagor  has  a  right  to  redeem,  although 
neither  such  purchaser  nor  the  mortgagee  ever  entered  on  the  land. 
There  is  no  merger  of  the  mortgage.(8) 

51.  A  and  B,  tenants  in  common,  mortgaged  to  C  and  D  to  secure 
$400.  Afterw^ards,  their  equity  of  redemption  was  sold  to  E,  upon  an 
execution  in  favor  of  another  creditor.  C  and  D  recovered  a  judgment 
for  possession  of  the  land  ;  and  afterwards  C  conveyed  all  his  interest 
in  the  land  to  E,  and  E  conveyed  one-half  of  the  right  in  equity  of  A 
and  B,  which  he  had  purchased  at  the  execution  sale,  to  E.  Subse- 
quently, the  execution  in  the  suit  of  C  and  D  was  served,  by  deliver- 
ing possession  of  the  land  to  the  parties  entitled.  Afterwards,  E  con- 
veyed to  D  all  his  interest  in  the  land,  thereby  uniting  in  D  the  titles 
of  mortgagor  and  mortgagee  of  half  the  land.  This  conveyance,  F 
treated  as  payment  of  one-half  of  the  debt ;  and,  having  tendered  the 
amount  of  the  other  half,  he  brought  a  bill  in  equity  against  D  to  re- 
deem. Held,  as  D  purchased  only  a  moiety  of  the  equity  of  redemp- 
tion, only  a  moiety  of  the  mortgage  could  be  held  as  extinguished  ; 
that  the  recovery  of  a  judgment  ujjon  the  mortgage  by  C  and  D,  being 
previous  to  D's  acquiring  any  interest  in  the  equity,  was  no  indication 
of  his  intention,  as  to  an  extinguishment  or  otherwise ;  and,  as  there 
was  nothing  to  show  that  D  would  in  any  way  gain  by  keeping  alive 
a  moiety  of  the  mortgage,  it  should  be  held  extitiguished,(4)(a) 

52.  Where  a  mortgagor  executes  a  release  of  the  equity  of  redemp- 
tion to  the  mortgagee,  and  receives  from  him  the  note  secured  ;  this 
does  not  extinguish  the  mortgagee's  title  under  the  mortgage,  or  his 
right  to  recover  damages,  for  breach  of  the  covenants  of  warranty 
contained  therein.  The  fact  that  the  mortgage  deed  contains  such 
covenants,  while  the  deed  of  release  does  not,  constitutes  a  sufficient 
ground  for  keeping  the  mortgage  alive.(5) 

53.  If,  after  a  conveyance  to  a  wife  of  an  equity  of  redemption,  she 
and  the  husband  take  possession,  and  the  husband  takes  an  assignment 

(1)  Popkin  V.  Bumstead.  8  Mass.  491.  I  Harris,  96  ;  Waddle  v.  Cureton,  2  Speers,  53. 

(2)  Eaton  v.  Simoiids,  14  Pick.  98.  (4)  Freeniaii  v.  Paul.  3  Greeiil.  260. 

(3)  Tmile  V.  Brown,  14  Pick.  514.  See  (5)  Lockwood  «.  Stiirdevant,  6  Conn.  374; 
West,  &c  V.  f^liester,  1  Jones,  282;  Berg-er  v.  Baldwin  v.  Norton,  2  Conn.  161  ;  Marshall  v. 
Hiester,   6  Whart.  210;  Moore  v.  Shultz,  1    Wood,  5  Verm.  250;*  Van  Deusea  v.  Frink, 

I  15  Pick.  453. 

*  The  marginal  note  states  that  the  release  of  the  equity  was  by  a  ivarranty  deed  ;  but 
the  case  does  not  so  find. 


(a)  Wliere  the  purchaser  of  an  equity  of  redemption,  under  two  distinct  mortgages,  takes 
an  assignment  of  tl:e  lirst,  this  is  no  merger,  nor  will  it  give  the  second  mortgagee  a  priority 
in  the  proceeds  of  a  sale.     Millspaugh  v.  McBride,  7  Paige,  509. 


CHAP.  XXXIII.]  PAYMKNT,  ETC.  449 

of  the  mortgage,  there  is  no  merger,  but  she  holds  uiuh'r  the  mort- 
gagor, and  he  under  the  mortgagee.(l) 

54,  It  is  the  general  rule,  that  a  eourt  of  law  will  not  permit  an 
outstanding  satisfied  mortgage  to  be  set  up  against  the  mortgagor. 
But,  as  the  legal  title  is  not  teehnieally  released  by  receiving  the 
money,  this  rule  must  be  founded  on  an  equitable  control  by  courts 
of  law  over  parties  in  ejectment ;  and  is  therefore  subject  to  excep- 
tions, where  equity  so  demands. 

55.  Land  was  sold  by  trustees,  f  )r  payment  of  the  debts  of  one 
deceased.  The  land  was  mortgaged  by  him  before  his  death,  and 
the  mortgagee  brings  ejectment  upon  the  mortgage,  against  the  trus- 
tees, and  the  heirs  of  the  mortgagor.  The  purchaser  had  received  no 
dee.  I  from  the  trustees,  and  therefore  gained  no  legal  title,  but  he  had 
paid  most  of  the  purchase-money.  The  mortgagee  having  obtained  a 
decree  for  foreclosure  and  sale,  the  purchaser,  with  the  consent  and  in 
presence  of  one  of  the  trustees,  paid  the  whole  amount  due  upon  the 
mortgage;  the  sum  being  considered  as  part  of  the  purchase-money 
due  under  the  sale  made  by  the  trustees.  Tlie  mortgagee  gave  tlie 
purchaser  a  receipt,  and  an  order  to  enter  the  suit  "  settled,"  which 
was  done.  In  an  action  of  ejectment  by  the  heirs  of  the  morto-a'^or 
against  the  purchaser,  held,  although  a  stranger  could  not  set  up  a 
mortgage,  satisfied  by  the  mortgagor,  to  defeat  his  title,  yet  he  might 
thus  use  a  mortgage  bought  in  by  himself;  that,  in  this  case,  the  pur- 
chaser owning  the  equitable  estate,  and  having  paid  of!"  the  mortgage 
on  his  own  account,  the  incumbrance  belonged  to  him,  and  the  raort- 
rjwjor  could  not  have  demanded  a  reconveyance  from  the  mortgagee ; 
and  that  the  action  would  not  ]ie.(2) 

50.  Where  a  third  person  purchases  mortgaged  property,  nominally 
as  from  the  mortgagor,  but  really  from  the  mortgagee,  or  with  his  con- 
currence and  by  his  request;  the  latter  will  uo't  be  allowed  to  set  up  a 
title  under  his  mortgage. 

57.  A  mortgages  to  B,  to  secure  the  purchase-monev  of  property 
bought  from  B.  Afterwards,  A  being  unable  to  pay  "the  purchase- 
money,  application  was  made  to  C,  with  the  knowledge  and  by  the 
desire  of  B,  who  himself  wrote  to  C  on  the  subject,  to  buy  a  portion  of 
the  property  at  an  advanced  price.  C  accordingly  bought  it,  and  paid 
the  price;  but  the  receipts  were  expressed  to  be  on  account  of  A's 
debt  to  B.  Before  the  purchase  was  completed,  B  expressed  to  C  his 
perfect  confi.lence  in  his  fulfilling  his  engagements.  Most  of  the  prop- 
erty was  delivered  to  C  with  B's  consent,  and  a  part  of  it  by  B  him- 
self. The  portion  remaining  in  B's  hands  having  been  sold  at  a  re- 
duced price,  and  his  debt  against  A  being,  therefore,  unsatisfied  ;  B 
chinned  to  hold  the  part  conveyed  to  C,  under  his  mortgage  from  A. 
C  files  a  bill  f.^r  a  perpetual  injunction  against  this  claun°  Held,  B 
was  a  party  to  the  contract  between  A  and  C,  and  the  portion  of  the 
property  sold  to  C  was  discharged  from  the  mortgage.(3) 

b±  Where  a  release  of  a  mortgage  is  made  to  diSinct  parties,  it  will 
take  effect  according  to  their  respective  interests  in  the  land,  inde- 
pendent of  such  mortgage. 

(1)  Cooper  i;  Whitney  3  Hill,  95.  ,      (3)  Skirving  t-  NeufviUe,  2  Dos.  194. 

(2)  Peliz  V.  Clarke,  5  Pet.  481.  [ 

Vol,  I,  29 


450 


MORTGAGE— FROM  WHAT 


[CHAP.  XXXIV. 


59.  A  mortgaged  land  to  B.  Afterwards,  A  and  B  joined  in  mort- 
gaging to  C.  C  entered  for  condition  broken,  but,  before  the  tliree 
jears  requisite  for  foreclosure  had  elapsed,  according  to  a  previous 
agreement,  tendered  a  release  of  his  mortgage,  which  they  refused  to 
receive,  until  five  years  had  passed  from  C's  entry.  Held,  the  re- 
lease reinstated  A  and  B  in  their  former  relation  of  mortgagor  and 
mortgagee,  as  if  the  mortgage  to  C  had  never  been  made.(l) 


CHAPTER  XXXIY. 


MORTGAGE— FROM  WHAT  FUND  TO  BE  PAID. 


1.  Debt  paid  from  tbe  fund  benefited — exe- 

cutor and  heir. 

2.  Mortgage  by  father  and  son. 

3.  Devised  lands. 

6.  Personal  estate  may  be  expressly  exempt- 
ed. 


8.  Exceptions  to  the  rule  of  applying  the 

personal  estate. 

9.  Rule  in  New  York. 

10.  In  Pennsylvania. 

11.  Recapitulation  of  casea. 

41.  Application  of  payments  in  equity. 


1.  It  is  a  rule  in  equity,  that  where  a  person  dies,  leaving  a  variety 
of  funds,  one  of  which  must  be  charged  with  a  debt ;  it  shall  be  paid 
out  of  that  fund  which  received  the  benefit.  Hence  the  personal  estate, 
in  the  hands  of  the  executor,  shall  be  applied  to  discharge  a  mortgage 
upon  the  real  estate,  in  the  hands  of  the  heir;  because  the  money  bor- 
rowed went  to  increase  the  personal  estate.  And  it  is  immaterial, 
whether  there  is  any  personal  obligation  for  payment  of  the  money  or 
not ;  because  there  was  a  debt  contracted  by  the  borrowing.(2)(a) 

2.  If  a  father  and  son  join  in  a  mortgage  of  the  father's  land,  without 
covenant,  the  father  receiving  the  money,  and  the  son  conveying  for  a 
nominal  consideration  ;  the  real  assets  of  the  fatherwill  not  be  charged 
in  the  hands  of  the  son,  an  heir  not  being  bound  even  b}^  an  express 
obligation,  unless  specially  named ;  nor  the  real  or  personal  assets  of 
the  son,  who  had  received  no  part  of  the  money  borrowed. (3) 

3.  Tlie  principle,  above  stated,  (sec.  1,)  requires  the  discharge  of  a 
mortgage,  upon  lands  devised,  as  well  as  those  descended,  out  of  the 
personal  estate  of  the  testator.(4) 

4.  The  personal  estate  is  liable  to  payment  of  a  mortgage  debt,  though 
the  land  is  devised  subject  to  the  incumhrance^  or  the  personal  estate  be- 
queathed, or  the  land  expressly  charged  with  payment  of  debts,  or  the 


(1)  Baylies  v.  Bussey,  5  Greenl.  153. 

(2)  2    Cruise,    146,    147.     See   Halsey   v. 
Reed,  9  Paige,  446 ;  Goodhue  v.  Barnwell, 


Rice,  198  ;  Quennell  v.    Turner,  4  Eng.  L.  k 
Equ.  84. 

(3)  2  Cruise,  146,  147. 

(4)  2  Cruise,  147. 


(a)  Upon  a  sale  by  the  mortgagee,  .''or  ihe  purpose  of  foreclosing ;  if  in  the  lifetime  of 
the  mortgagor,  tlie  surplus,  after  satisfying  incumbrances,  is  personal  estate;  if  after  his 
death,  it  belongs,  willi  the  equity  of  redemption,  to  tlie  heir.  Wright  v.  Rose,  2  Sim.  &  Stu. 
323.  In  New  Hampsliire,  an  administrator  must  redeem  a  mortgage,  unless  licensed  to  sell 
subject  thereto.     Rev.  St.  318. 


CHAP.  XXX IT.]  FUXD  TO  BK  PATP.  •  451 

real  estate  limited  in  trust,  cither  in  foe  or  for  a  term,  for  j)a3'ment  of 
debts.(l) 

5.  If  the  personal  estate  is  deficient,  a  mortgage  shall  be  discharged 
from  the  proceeds  of  land  devised  lor  payment  of  debts.(2) 

And  where  a  mortgaged  estate  is  devised,  and  another  estate  de- 
scends to  the  heir,  the  latter  shall  be  applied  in  i)avment_of  Ihe  mort- 
gage.(8)(a) 

6.  A  testator  may,  however,  excmjit  the  personal  estate  from  ])ay- 
ment  of  the  mortgage  debt,  by  substituting  the  real  estate  in  its  stead. 
And  this  ma}''  be  done,  either  by  expressed  words,  or  by  a  rnaiiife.sl  in- 
tent aj)pearing  upon  the  will. (4) 

7.  So,  the  specific  bequest  of  a  chattel  will  exempt  it  from  liability 
for  a  mortgage  debt.(5) 

8.  The  rule  above  stated,  being  founded  on  the  consideration   that 
the  debt  was  originally  a  personal   one,  and   the  charge  on  the  land 
merely  collateral,  is  not  applicable  where   the  mortgage  debt  was  con- 
tracted by  one  person,  and  the  land  descends  to  another.(6)     Thus,  if  a 
grandfather  mortgage,  with  a  covenant  to  pay  the  money,  and  the  land 
descend  to  his  son,  who  dies  without  paying  the  mortgage,  leaving  per- 
sonal estate  and  a  son  ;  the  father's  personal  estate  shall  not  be  applied 
in  payment  of  the  mortgage.     So,  a  covenant  by  one  person  to  pay  the 
debt  of  another,  which  is  secured  by  mortgage,  will  not  subject  the  per- 
sonal estate  of  the  former,  primarily,  to  the  payment  of  the  debt.    And 
even  though  a  person  expressly  charge  his  real  and  personal  estate 
with  his  debts,  this  will  not  render  the  personal  estate  liable  to  the  paj-- 
ment  of  a  mortgage  made  by   another.     Upon   the  same  principle, 
where  one  purchases  an  equit}'-  of  redemption,  his  personal  estate  will 
not  be  applied  to  payment  of  the  mortgage-money,  even  though  he  have 
expressly  covenanted  to  pay  it,  unless  it  appears  to  have  been  his  in- 
tention to  make  the  debt  his  own.     So,  in  case  of  a  deed  given,  subject 
to  a  mortgage,  the  land  is  the  primary  fund  for  payment.     Equity  ef- 
fects a  subro'jalion  in  favor  of  the  mortgagor.     So  also,  as  against  a  se- 
cond purchaser  from  the  first  grantee,  though  the  second  deed  does 
not   mention  the   mortgage.      So,  in  case  of  sale   of  the   equity   of 
redemption  on  execution,  the  land,  in  equity,  is  the  primary  fund  ; 
and,  if  a  suit  is  brought  upon    the  bond,  and  judgment  given  for 
the  defendant,  this  is  no  bar  to  a    subsequent   bill   for  foreclosure.     If 
a  wife  joins  her  husband  in  a  mortgage  of  her  own  estate,  and  the  money 
goes  to  his  benefit,  his  personal  estate  will  be  first  applied  in  payment 
of  it.     But,  where  monc}^  is  borrowed  on  the  wife's  estate,  partly  to  pay 
her  dfbts,  and  partly  for   the  husband's  use,  the  latter  is  not  bound  to 
indemnify  the  wife's  estate  against  any  part  of  it.     And,  if  it  appear  not 
to  have  been  the  wife's  intention  to  stand  as  a  creditor  for  the  mortgage- 
money,  the  husband's  personal  estate  will  not  be  liable.(7) 

9.  In  New  York,  tbe  heir  or  devisee  of  a  mort"^as:ed  estate  shall 

(1)  2  Cruise,  148.  .      (6)  2  Cruise.  163. 

(2)  Ibid  149.  (7)  2  Cruise,  1G4-5-6-8-70-T3-5;  Juniel 

(3)  Ibid.  152.  \v.  Jumel,  7  Paige,  591;  Hnyer  v.  Pruen,  lb. 

(4)  Ibid.  152-60;  2  Atk.  424.  i  4G5.     See  Co.x:  v.  Wiieeler,  lb.  248  ;  Skeel  r. 

(5)  Ibid.  IGl,  1C2.  Spraker,  8,  182. 


(a)  Tiiia  point  was  settled  by  Lord  Ilardwicke,  upon  reconsideration  of  a  decree  to  the 
contrary,  in  regard  to  wliicli  he  remarked,  that,  "not  to  confess  an  error,  is  much  worse 
than  to  err." 


452  MORTGAGE— FROM  WHAT  [CHAP.  XXXIY. 

not  call  upon  the  executor  to  redeem  it,  unless  the  will  expressly  so 
direct.(l)(a) 

10.  In  Pennsylvania,  A  mortgaged  to  the  plaintiff  one  lot  of  land, 
and  then  devised  all  his  estate,  comprising  many  other  lots,  to  B.  B 
died,  having  devised  the  mortgaged  tract  to  C,  and  the  rest  of  her  estate 
to  her  executors.  The  plaintifi'  having  recovered  judgment  upon  the 
bond  which  accompanied  the  mortgage,  a  motion  was  made  that  the 
sum  due  should  be  levied  upon  the  land  mortgaged,  and  the  rest  of  the 
estate  discharged.  Held,  that  all  the  lands  which  had  belonged  to  A 
should  contribute,  according  to  their  respective  values  ;  that  there  was 
nothing  in  the  will  of  B,  showing  an  intention  that  C  should  take  the 
estate  cum  onere^  and  therefore  it  should  share  equally  wdth  the  other 
lands  in  payment  of  the  mortgage  debt ;  and  that  to  charge  C  with 
the  whole  debt,  she  being  a  specific  devisee,  would  plainly  defeat  the 
intention  of  B,  while  to  charge  the  lands  held  by  the  residuary  lega- 
tees would  not  have  that  eflfect.(2) 

11.  As  between  heir  and  executor,  the  rules  above  stated  are  of 
comparatively  little  consequence  in  the  United  States;  because,  in 
general,  real  and  personal  estates,  at  the  death  of  the  owner,  pass  to 
the  same  heirs.  As  between  devisee  and  executor,  they  may  be  im- 
portant ;  but  very  few  cases  have  been  decided.  There  is,  however, 
one  opinion  of  extraordinary  ability  and  value;  being  that  delivered 
by  Chancellor  Kent  in  Cumherland  v.  Codrivgtori^{S)  in  which  case  he 
presents  at  lengh  the  English  doctrine  and  decisions  upon  this  subject, 
as  follows. 

12.  As  between  the  representatives  of  the  real  and  personal  estate 
of  the  deceased  purchaser  of  a  mortgage,  the  land  is  the  primary  fund 
to  pav  off  the  mortgage. 

13."  In  Shafto  v.  Shafto,{i)  decided  by  Lord  Thurlow  in  1786,  the 
devisee  of  land,  mortgaged  by  the  testator,  covenanted  with  the  holder 
of  the  mortgage,  that  the  estate  should  remain  as  security  for  the  debt 
and  interest,  with  an  additional  one  per  cent,  of  interest.  The  question 
was,  whether  the  personal  estate  of  the  devisee,  who  had  died  in  the 
meantime,  should  not  pay  the  debt  and  interest,  or  at  least  the  arrears 
of  interest,  with  the  additional  one  per  cent.  Held,  the  land  was  the 
primary  fund  to  discharge  the  mortgage,  that  the  interest  must  follow 
the  nature  o(  the  principal,  and  that  the  contract  for  additional  interest 
was  also  in  the  nature  of  a  real  charge. 

1-1.  In  Tankerville  v.  Faivcett,{o)  Lord  Kenyon  declared,  that,  where 
an  estate  descends  or  comes  to  one,  subject  to  a  mortgage,  although  the 
mortgage  is  afterwards  assigned,  and  the  party  covenants  to  pay  the 

(1)  1  K  Y.  Rev.  St.  749;  Halsey  v.  Reed,  i      (H)  3  John.  Cha.  252. 

9  Paige,  44G.  (4)  2  P.  Wms.  G64,  n.  1. 

(2)  Morris  v.  McConuaugliv,  2  Ball.  189.      I      (5^  2  Bro.  57. 

(a)  In  1824,  A  gave  a  bond,  secured  by  mortgage.  B  purchased  the  land,  subject  to  pay- 
ment of  the  mortgage,  and  conveyed  to  a  trustee  for  the  benefit  of  A's  wife.  After  A's 
death,  the  csiui  que  trust,  being  legal  owner,  under  the  Revised  statutes,  administered  upon 
the  estate.  Held,  in  equity,  the  land  was  the  primary  fund  for  payment  of  tlie  mortgage, 
and  the  administratrix,  owning  subject  thereto,  was  not  allowed  for  a  payment  of  the  mort- 
gage. Jumel  v.  Jumel.  7  Pfiiye,  591.  In  Iilissouri,  the  court  ni;iy  order  redemption  with 
the  personal  as.sets,  if  the  will  makes  no  provision  therefor,  and  it  will  be  beneticinl  to  the 
estate,  and  not  injurious  to  creditors.  Otherwise,  the  court  may  order  a  sale  of  the  equity. 
Misso.  St.  51. 


CHAP.  XXXIV.]  FUND  TO  BE  PAID.  -  453 

money,  liis  personal  estate  will  not  be  bound.  1'lic  devisee  of  land 
having  voluntarily  charged  a  simple  eontraet  debt  of  the  testator  upon 
the  land  devi.sed,  and  died  ;  held,  the  debt  wa.'^  not  the  proper  d.-bt  of 
the  devisee,  and  his  personal  estate  was  not  liable. 

15.  In  Ta-edildl  v.  Tweddcll ,{V)  A  })iireha.sed  the  equity  of  redem[)tion 
of  a  mortgaged  estate,  and  agreed  with  the  mortgagor  to  pay,  in  part 
consideration  of  the  purchase,  the  mortgage  debt  to  thtrson  and  heir 
of  the  mortgagee,  and  the  rest  of  the  purchase-money  to  the  mort- 
gagor, lie  also  covenanted  with  the  mortgagor,  that  he  would  thus 
pav  the  mortgage  debt,  and  indemnify  the  mortgagor  from  the  mort- 
gage. A  died,  having  devised  the  estate.  U[)on  a  bill  by  the  devisee, 
to  have  the  mortgage  discharged  from  the  personal  estate  ;  held,  the 
personal  estate  was  not  thus  liable  ;  that  the  personal  estate  is  never 
charged  in  equity,  where  it  is  not  at  law  ;  that  A  took  the  land  subject 
to  the  charge,  but  the  debt,  as  to  him,  was  a  real,  not  a  personal  one  ; 
and  that  his  contract  with  the  mortgagor  was  a  mere  contract  of  indem- 
nity, which  would  have  been  implied,  if  not  expressly  made. 

16.  In  BUUiKjhurat  v.  Walkei\{2)  an  estate  was  held  by  a  lease  for 
lives,  subject  to  a  charge  of  £2,200  to  A.  It  was  conveyed  by  the 
holder  to  B,  subject  to  this  charge,  and  subject  to  a  chaigc  of  £900  to 
C;  and  B,  in  the  indenture  of  conveyance  to  which  A  was  party,  cove- 
nanted to  pay  both  charges.  B  paid  the  debt  to  C,  and  afterwards  gave 
bond  to  pay  A  the  interest  of  her  claim  for  life,  and  the  principal  at 
his  death.  The  lease  having  been  repeatedly  renewed,  B  died,  having 
devised  the  estate  to  two  of  the  defendants,  and  appointed  two  others 
of  the  defendants  his  executors.  The  charge  being  called  in,  and  paid 
to  a  legatee  of  A,  by  the  executors  of  B,  the  defendants  weie  called  on 
b}'  the  plaintiffs,  pecuniary  legatees  of  B,  who  were  unpaid,  to  have 
£2,200  replaced  by  the  devi.>^ees  of  the  land,  and  paid  over  to  them. 
Held,  notwithstanding  the  covenant  by  B  to  pay  the  debt,  contained  in 
an  instrument  to  vvhicii  A,  tlip  holder  of  the  debt,  was  a  party,  and  the 
subsequent  bond,  altering  and  extending  the  original  time  of  payment ; 
the  nature  of  the  charge  was  not  varied,  but  it  remained  primarily  a 
debt  upon  tlie  land  ;  that  though  B  incurred  a  personal  liabilit}'  to  the 
creditor,  this  did  not  subject  his  personal  estate,  because  such  intention 
did  not  appear;  and  the  defendants  were  decreed  to  pay  over  the  money. 

17.  Hence,  it  seenis,  to  charge  the  personal  estate,  the  assumption  of 
the  debt  must  be  accompanied  with  evidence  of  an  intention  to  assum.e 
it,  as  a  personal  debt,  detached,  as  it  were,  from  the  land. (8) 

18.  In  Matlheson  v.  Hai\hoicke,{\)  the  testator  devised  land  to  A  and 
B  in  fee,  charged  with  the  payment  of  debts  and  legacies.  A  paid  all 
of  them  but  one  legacy,  for  which  he  gave  his  note,  and  died.  It  was 
admitted  that  he  had  paid  olF  the  other  incumbrances,  in  order  to  re- 
lieve the  land  from  th'em  entirely.  Ileld,  the  note  was  merely  col- 
lateral securit}',  and  the  land  the  primary  fund  for  payment  of  the 
legacy. 

19.  The  question  in  the  latter  cases  seems  to  be,  not  whether  the 
party  acquiring  the  mortgaged  or  charged  estate  has  made  himself 
personally  liable  for  the  debt,  but  whether  the  land  or  the  personal 
estate  shall  be  treated  as  the  primary  fund  for  payment.     The  distinc- 

(l)2Bro.  101,  152.  I      (3)  3  John  Clia.  23G. 

(2;  2  Bro.  C04.  |     (-i)  2  P.  Wms.  GGl,  n. 


454  MORTGAGE— FROM  WHAT  [CHAP.  XXXIV. 

tion  is  tins :  that  where  one  mortgages  land  as  security  for  his  own 
debt,  the  debt  is  the  principal,  and  the  mortgage  merely  collateral. 
But,  on  the  other  hand,  where  one  acquires  an  estate  already  mortgaged, 
even  though  he  personally  assume  the  debt,  and  covenant  to  pay  it,  he 
is  understood  to  become  a  debtor  only  in  respect  to  the  land,  and  bis 
promise  to  be  made  on  account  of  the  land,  which  therefore  is  the  pri- 
mary fund  for  payment.  The  cases  establishing  each  of  these  proposi- 
tions are  said  to  be  equally  numerous  and  decisive.(l) 

20.  In  Woods  v.  IIurdwgford,{2)  A  had  mortgaged  land  to  raise 
money  for  his  son,  B.  The  land  was  afterwards  conveyed,  subject  to 
the  mortgage,  to  the  use  of  B,  who  joined  with  his  father  in  a  covenant 
for  payment  of  the  money.  The  land  was  next  reconveyed  to  A,  who 
covenanted  to  discharge  the  mortgage,  and  afterwards  borrowed  a 
further  sum  from  the  mortgagee,  and  made  a  new  mortgage  for  the 
whole  debt.  The  question  was  between  the  heir  and  personal  represen- 
tative of  A,  which  should  pay  the  debt.  Lord  Alvauley,  M,  R,  held, 
that  though  the  debt  belonged  primarily  to  B  in  equity,  and  to  A  and 
B  together  at  law,  A  had  made  it  his  own ;  and  that  it  was  as  strong  a 
case  as  could  exist,  without  express  declaration.  He  was  careful  not 
to  contradict  in  any  degree  the  principle  established  in  Ticeddell  v. 
Tweddell,  which  was  a  very  governing  case.  In  that  case,  there  was 
no  communication  with  the  mortgagee,  but  only  a  covenant  of  in- 
demnity ;  and  the  purchaser  did  not  thereby  personally  assume  the 
debt.(3) 

21.  In  Butler  v.  Bader,{4:)  the  purchaser  of  an  equity  of  redemption 
agreed  with  the  vendor,  to  pay  the  mortgage  debt  of  £2,000,  and  also 
£1,000  to  the  vendor ;  but  there  was  no  communication  with  the 
mortgagee.  The  authority  of  Tweddell  v.  Tivedddl  was  recognized,  as 
showing  that  the  land  was  primarily  chargeable  with  the  debt,  which 
did  not  become  the  debt  of  the  purchaser,  as  a  personal  liability.  Lord 
Alvanley  collected  from  the  decisions,  that  the  purchaser  of  land, 
charged  with  a  debt,  by  a  mere  covenant  to  indemnify  the  vendor, 
does  not  make  the  debt  his  own,  except  in  respect  to  the  estate  ;  and  the 
estate,  not  his  personal  property,  must,  bear  it.  The  purchaser  might 
be  circuitously  liable  to  the  vendor  for  his  indemnity,  but  the  decree 
would  have  beeil*  iu  such  case,  for  a  sale  of  the  land. (5) 

22.  In  Warinrj  v.  Trar(i,(6)  the  testator,  having  purchased  a  mort- 
gaged estate,  borrowed  a  further  sum,  and  gave  a  new  bond  and  mort- 
gage for  it.  Held,  the  debt  should  be  paid  from  the  personal  estate, 
because  the  personal  contract  was  primary,  and  the  real  contract  only 
secondary.  Lord  Eldon,  in  giving  judgment,  remarked,  that  in  general 
the  personal  estate  was  primarily  liable,  because  the  contract  was  pri- 
marily a  personal  contract,  and  the  land  bound  only  in  aid  of  the  per- 
sonal obligation.  That  Lord  Thurlow  carried  the  doctrine  so  far  as  to 
hold,  that  if  the  purchaser  of  an  equity  of  redemption  covenants  to 
pay  the  mortgage  debt,  and  also  to  raise  the  interest  from  four  to  five 
per  cent. ;  yet,  as  between  his  real  and  personal  representatives,  even 
the  additional  interest  is  not  primarily  a  charge  upon  the  personal 
estate,  being  incident  to  the  charge.     That,  even  without  any  express 


(1)  3  John.  Cha.  256-T. 

(2)  3  Yes.  128. 

(3)  3  John.  Cha.  258. 


(4)  5  Ves.  534. 

(5)  3  John.  Cha.  258. 
(G)  5  Yes.  670;   1,  332. 


CHAP.  XXXIY.]  YXJ^D  TO  BE  PAID.  466 

covenaut,  the  purchaser  of  an  L-quity  i.s  bound  to  iiiiUMniiify  the  vendor 
aj^'ainst  any  personal  obligation,  and  pay  a  debt  ehargc^d  upon  the 
land.  That  the  case  of  Tioeddell  v.  Tivedddl  proceeded  upon  the 
groun<l,  that  the  debt  due  the  mortgagee  was  never  a  debt  directly 
li-DUi  the  purchaser.  That  il  Lord  Thurlow  was  right  upon  the  fact, 
the  ca.se  was  a  clear  authority,  that'  the  purchase  ot  an  equity  will 
not  make  the  mortgage  debt  tiie  debt  of  the  purcha.scr.,-That  in  his 
hands  it  is  the  debt  oUlie  estate,  and  a  mortgage  interest,  as  between  his 
representatives. 

23.  In  the  Earl  of  Oxford  v.  Lady  Rodney, {i)  the  testator  purchased 
a  mortt'aged  estate,  paid  the  consideration  remaining  for  the  vendor 
beyontFthe  mortgMge,  and  then  covenanted  with  the  mortgagee  to  pay 
liim  the  mortgage  debt.  After  his  death,  upon  the  question  whether 
the  per.>;onal  esUite  should  go  to  pay  the  debt,  Sir  William  Grant,  M.  R., 
remarked,  that  it  was  not  very  easy  to  reconcile  the  case  of  TweddeU  v. 
IVeddeU,  with  the  decision  in  Parsons  v.  Freeman,  by  Lord  ILirdwicke, 
that  where  the  mortgage-money  is  taken  as  part  of  the  price,  the  charge 
becomes  a  debt  from  the  purchaser.  But  he  admits  that  Lord  Thur- 
low's  princi[)le  was  right,  in  a  case  where  the  contract  of  the  purchaser 
gives  to  the  mortgagee  no  direct  and  immediate  right  against  himself,  but 
is  a  mere  contract  of  indemnity. 

24.  Chancellor  Kent  remarks  upon  these  observations,(2)  that  the 
mortgage  debt  is  always  part  of  the  price,  unless  the  vendor  agrees  to 
remove  the  incumbrance.  By  covenanting  to  indemnify  the  vendor, 
the  purchaser  takes  the  land  cum  onere,  and  the  value  of  the  incum- 
branc-i  is  of  course  deducted  from  the  value  of  the  land.  This  was  the 
fact  in  many  of  the  cases  already  cited. 

25.  Frorn  this  series  of  cases.  Chancellor  Kent  deduces  the  general 
principle,(3)  that  a  covenant  by  the  purchaser  of  an  equity  of  redemption, 
to  indemnify  the  vendor  against  the  mortgage,  does  not  make  the  debt 
his  own,  so  as  to  render  it  primarily  chargeable  upon  his  personal  as- 
sets. To  produce  this  effect,  there  must  be  a  direct  communication  and 
contract  with  the  mortgagee,  and  moreover  some  decided  evidence  of 
an  intention  to  charge  primarily  the  personal  estate  ;  as  where  the  ori- 
ginal contract  is  essentially  changed,  and  lost  or  merged  in  the  new  and 
distinct  engagement  with  the  mortgagee;  and  the  part}'  shows  that  he 
meant  to  take  upon  himself  the  debt,  absolutely  and  at  all  events,  as  a 
personal  debt  of  his  own, 

26.  Chancellor  Kent  then  proceeds  to  a  consideration  of  the  older 
cases  upon  this  subject,  and  concludes  that  they  establish  the  same  doc- 
trine.(4) 

27.  In  Pockh'jj  V.  PocJcky,{5)  the  testator  had  purchased  an  annuity 
out  of  mortgaged  lands,  an<l  taken  an  assignment  of  the  mortgage  to 
protect  his  purchase.  By  his  will,  he  directed  that  the  m<:)rtgage 
debt  should  be  paid  from  his  personal  estate.  Lord  Chancellor  Notting- 
ham decreed,  that  it  should  be  thus  paid,  in  consequence  of  this  express 
direction. 

28.  Chancellor  Kent  remarks,(6)  that  this  case  shows,  that  the  pur- 
chase of  land  mortgaged  did  not  at  that  day  make  the  debt  a  personal 

(1)  14  Ves.  417.  I      (4)  Ibi.l.  2G3,  264. 

(2)  3  JoliD.  Clia.  260,  2G1.  (5)   1  Vern.  36. 

(3)  3  John.  Clm.  2G1,  262.  1      (6)  Ibid.  264. 


456 


MORTGAGE— FROM  WHAT 


[CHAP.  XXXIY. 


one,  but  an  express  direction  by  will  was  required  to  have  this  effect. 
This  view  is  confirmed  by  the  observation  of  the  counsel  in  the  case, 
that  the  purchaser  of  an  equity  of  redemption  must  hold  the  land  sub- 
ject to  the  debt,  but  was  not  personally  liable,  as  for  his  own  proper 
debt. 

29.  In  Coventry  v.  CoveyUry^{l)  A  had  a  life  estate,  with  power  to  set- 
tle a  jointure  upon  his  wife.  He  covenanted  to  settle  lands  according- 
ly, but  died  before  doing  it.  The  plaintiffs  brought  a  bill  against  the 
heir  for  a  specific  execution.  Held,  the  assets  of  A  should  not  be  ap- 
plied to  relieve  the  settled  estate,  because,  wherever  assets  were  thus 
applied,  the  debt  originally  charged  the  personalty.  The  covenant 
remained  as  a  real  lien  on  the  settled  estate,  and  the  personal  es- 
tate could  not  be  applied,  since  there  was  no  debt  from  which  this  es- 
tate was  to  be  relieved. 

30.  In  Bagot  v.  Ought07},{2)  the  ancestor  mortgaged  his  estate,  and 
died.  His  daughter  and  heir  married  ;  and  the  husband  settled  the  es- 
tate by  fine  on  himself  and  his  wife,  joined  in  an  assignment  of  the 
mortgage,  and  covenanted  to  pay  the  money,  and  died.  Lord  Chan- 
cellor Covvper  held,  that  the  mortgage  was  not  to  be  paid  from  the  per- 
sonal estate  of  the  husband,  the  covenant  being  only  an  additional  se- 
curity to  the  lender,  and  not  designed  to  change  the  nature  of  the 
debt. 

81.  In  Evelyn  v.  Evehjn,{d>)  A  mortgaged  his  land,  and  his  son  B  af- 
terwards covenanted  with  an  assignee  of  the  mortgage  to  pay  the  debt. 
Upon  the  death  of  A,  B  came  to  the  estate  by  settlement,  and  died  in- 
testate. Held,  B's  personal  estate  should  not  be  applied  to  the  debt,  for 
it  was  still  A's  debt,  and  B's  covenant  was  merely  a  surety  for  the 
land. 

32.  In  Ancaster  v.  Mayer,{4:)  Lord  Thurlow  was  inclined  to  think, 
that,  in  the  f)receding  case,  B,  by  his  covenant,  had  assumed  the  debt : 
and  he  supposed  the  idea  of  the  court  w^as,  that  the  covenant  was  by 
way  of  accommodating  the  charge,  and  not  of  making  the  debt  his  own. 
But  Chancellor  Kent  considers  the  decision  as  conformable  to  those  in 
other  cases. (5) 

83.  In  Leman  v.  New n ham, {(y)  the  same  point  was  settled,  where  a 
son,  inheriting  a  mortgaged  estate,  covenanted  with  the  mortgagee  to 
pay  the  debt. 

34.  In  Parsons  y.  Free7nan,{7)'Lord  Hardwicke  remarked  that  where 
an  ancestor  has  not  charged  himself  personally  with  a  mortgage  debt, 
the  heir  shall  take  cum  onere.  So,  if  one  purchase  the  equity  of  re- 
demption, with  usual  covenants  to  pay  the  mortgage,  he  knew  of  no 
decision  to  that  effect,  but  was  inclined  to  think  the  heir  could  not 
claim  to  have  the  land  relieved.  But  where,  as  in  that  case,  the  pur- 
chaser agreed  with  the  vendor  to  pay  a  part  of  the  price  to  him,  and 
the  rest  to  the  mortgagee,  this  made  the  debt  his  own,  and  the  personal 
estate  should  be  first  applied  to  pay  it. 

35.  Chancellor  Kent  supposes,(8)  that  this  case  is  imperfectly  reported, 
no  facts  being  given,  and  a  very  brief  note  of  the  opinion.     He  remarks 


(1)  9  Mod.  12  ;   2  P.  Wms.  222;   Str.  596. 

(2)  1  P.  Wms.  34  7. 

(3)  2  P.  Wms.  659. 

(4)  1  Bro.  454. 


(5)  3  John.  Cha.  266. 

(6)  1  Ves.  57. 

(7)  Ambl.  115;  2  P.  Wms.  664  n. 

(8)  lb,  266,  267. 


CHAP.  XXXIV.]  FUND  TO  BE  PAID.  457 

tliat,  as  it  staiuLs,  it  is  ropu^niant  to  most  of  tlic  c:iscs  wliicli  preceded 
and  followed  it;  and  that  ].ord  Ilavdwicko  himself  soon  afterwards 
madu  a  contrary  ilecision.  Thus,  in  fjncls  v.  Nau<jle,{\)  a  mort^raged  es- 
t  ite  came  to  a  married  woman.  The  husband  borrowed  money  by  bond 
and  mort)i:a<::e  of  the  land,  the  wife  joinin,<>!-,  and  the  money  bein^^  ap- 
plied part7vlbr  his  use  and  i)artly  to  pay  her  debts.  The  husb:i.nd  -ave 
a  bond,  and  covenanted  to  pay  tlie  whole  mort-^a^^e  debt. '-IiOr<l  Ilard- 
wicke  lield,  according-  to  the  presumed  intention  of  the  parlies,  thai  the 
land  was  still  the  primary  fund  for  payment,  and  that  the  husband  was 
not  bound  to  relieve  it. 

30.  In  Forrester  v.  L€igh,{2)  a  testator  pui-chased  several  mortgaged 
estates,  and  covenanted  lo  pay  the  debt  due  upon  one  of  them.  He 
purchased  only  a  part  of  another  of  the  estates,  and  he  and  his  co-pur- 
chaser covenanted  to  pay  their  several  shares,  and  to  indemniiy  each 
other.  Held,  by  Lord  Hardwicke,  as  between  legatees  and  devisees  of 
the  tfstator,  the  debts  should  be  paid  from  the  land. 

37.  In  the  case  of  the  Earl  of  Belvedere  v.  Roc/iforcl{3)  A  mortgaged 
to  B,  and  alterwards  sold  to  0.  In  the  covenant  of  warranty  in  the 
latter  deed,  the  mortgage  was  excepted,  and  the  deed  stated,  that  the 
mortgage  debt  was  to  be  paid  by  C  out  of  the  purchase-money.  An 
indorsement  also  acknowledged  payment  of  a  part  of  the  price  on  ^j^r- 
fedion  of  the  deed,  and  the  rest  allowed  on  account  of  the  mortgage.  _  C,  by 

his  will,  gave  a  large  personal  estate  to  his  wife,  and  also  devised  to 
her  the  mortgaged  land  for  life,  then  to  his  oldest  son  George  in  fee, 
subject  to  debts  and  legacies,  declaring  that  his  wife  should  hold,  free 
from  incumbrance,  and  that  George  should  pay  the  interest  of  the  mort- 
gage debt  from  otlier  lands  devised  to  him.  After  some  legacies,  he 
bequeathed  the  rest  of  his  personal  estate,  after  payment  of  all  his  just 
debts,  and  all  his  real  estate,  to  George,  whom  he  appointed  his  execu- 
tor. George  paid  the  interest,  but  not  the  principal,  of  the  mortgage 
debt.  His  mother  also  released  her  interest  in  the  land  to  him.  He 
made  a  will,  giving  small  annuities  to  his  younger  sons  ;  the  mortgaged 
land,  according  to  his  estate  therein,  to  his  youngest  son  William  ;  and 
the  principal  part  of  his  estate,  being  very  large,  to  his  eldest  son  Robert. 
After  the  death  of  George,  Robert  refused  to  pay  the  principal  or  inte- 
rest of  the  mortgage  debt,  and,  William  being  unable  to  pay  it,  the 
inortgnge  was  sold,  and  afterwards  the  estate  also,  under  a  decree. 
William  then  filed  a  bill  against  the  executors  of  the  father  (of  whom 
Robert  was  one)  and  of  the  grandfather,  to  have  the  mortgage  debt 
jiaid  from  the  personal  assets,  in  relief  of  the  land.  Lord  Chancellor 
LitVord  di>creed,  that  the  mortgage  debt  was  the  debt  of  the  grandfather 
at  his  dwath;  and  that  his  persona!  estate,  which  came  first  to  the  son 
and  alterwanls  to  the  grandson,  should  be  applied  to  pay  it.  The  de- 
cree was  affirmed  in  the  House  of  Lords. 

38.  Cliancellor  Iv3nl(4)  rpiestions  the  authority  of  this  case  as  a  pre- 
cedent, although  a  ditferent  decision  would  have  operated  with  extreme 
Lardsiiip  under  the  circumstances.  "  But  hard  cases  often  make  bad 
precedents."  He  remarks,  that  it  has  been  disregarded  or  rejected  by 
Lord  Thurlow,  Lord  Alvanley,  Lord  Eldon,  and  Sir  William  Grant; 
and  also  that  no  j)reeise  account  is  given  of  the  reasons  upon  which  the 

(1)  Anil).  150;  2  P.  Wms.  664,  n.  I      (3)  6  Bro.  Pari.  620. 

(2)  Anib.  171  ;  2  P.  Wins.  604,  n.  |      (4)  3  John.  Cha.  2-;0,  271,  272. 


458  MORTGAGE— FROM  WHAT  FUND,  ETC.         [CHAP.  XXXIV. 

decision  was  founded,  and  it  may  perhaps  be  considered  as  turning 
upon  the  construction  of  a  will,  and  its  very  special  provisions. 

89.  The  result  of  the  cases,  as  staled  by  Chancellor  Kent,  is(i)  that 
as  to  wills,  the  testator  may  charge  an  incumbrance  upon  his  personal 
assets,  by  express  directions,  or  by  disposition  and  language  equivalent 
to  such  directions — as  where  a  charge  upon  the  land  would  oppose  or 
defeat  other  provisions  in  the  will.  And,  in  order  to  charge  the  per- 
sonal assets  by  acts  done  in  his  lifetime,  he  must  become  directly  liable 
to  the  creditor,  and  also  indicate  in  some  way  an  intention  to  make  the 
debt  his  own.(«) 

40.  Although  an  heir  is  entitled  to  the  aid  of  the  personal  property, 
of  the  mortgagor  in  paying  off  mortgages,  yet,  if  be  disposes  of  the 
mortgaged  estate,  lie  cannot  afterwards  come  upon  the  personal  estate 
for  assistance.  And  there  seems  to  be  no  authority,  requiring  an  ad- 
ministrator to  redeem  mortgaged  estates  in  foreign  countries;  inasmuch 
as  he  would  have  no  power  to  do  any  act,  as  administrator,  in  those 
countries  (2) 

41.  In  connection  with  the  subject  of  this  chapter,  may  properly  be 
stated  the  rules  of  law  regulating  the  application  of  mone3's  paid  by  a 
party  Avho  is  indebted  upon  mortgage,  and  also  upon  other  securities, 
to  the  same  creditor;  and  likewise  the  appropriation  of  payments,  with 
reference  to  the  conflicting  interests  of  successive  mortgagees. 

42.  Where  a  creditor,  holding  several  debts,  some  of  which  are  se- 
cured by  mortgage  and  others  not,  joins  them  in  one  suit,  and  recovers 
judgment,  and  the  execution  is  satisfied  only  in  part;  a  court  of  equity 
will  first  apply  the  moneys  received,  to  extinguish  those  parts  of  the 
claim  which  are  not  secured  by  the  mortgage.  And  whenever  the 
mortgage  is  enforced  in  a  suit  for  foreclosure,  upon  the  hearing  in 
equity  to  ascertain  the  amount  due,  every  consideration,  as  to  the  ap- 
plication of  paj-ments  and  partial  satisfaction,  will  arise,  which  could  be 
entertained  in  the  ordinary  course  of  a  bill  in  equity.  The  case  is  one, 
not  of  voluntary  payment,  but  of  a  satisfaction  pro  tanto  in  invitum, 
and  the  plaintiff  may  well  be  presumed  to  make  the  application,  in  the 
manner  most  beneficial  to  himself.(8) 

43.  Bill  in  equity  brought  by  A  against  B  and  C,  to  foreclose  a  mort- 
gage, made  by  B  to  A,  January  1,  1817,  to  secure  a  note  for  $1,116. 
C  was  a  purchaser  of  B's  right  of  redemption,  C  filed  a  cross  bill,  in 
which  he  alleged,  that  the  mortgaged  premises  consisted  of  two  distinct 
parcels  of  land,  one  of  which  was  of  much  greater  value  than  the  other; 
that  lot  No.  1,  being  the  less  valuable  parcel,  had  been  sold  to  him  in 
November,  1821,  upon  an  execution  against  B  and  himself,  as  B's  secu- 
rity, for  $175;  and  he  prayed  that  the  mortgage  debt,  due  to  A,  might 

(1)  3  John.  Cha.  272.  i      (3)  Williams  v.  Reed,  3  Mas.  423-4;  See 

(2)  Haven  v.  Foster,  9  Pick.  133-4.     See    Norton  v.  Soule,  2  GreenL  341. 
Jennison  v.  Hapgood,    10  Pick.  77  ;   1  Lit.  | 

318.  I 


(a)  A  mortgagor  bj^  bis  will  ordered  payment  of  his  debts,  and  devised  his  residuary 
lands,  including  the  land  mortgaged,  and  all  his  residuary  personal  property,  to  his  oldest 
son,  who  was  the  executor.  The  son  dies  intestate,  the  mortgage  not  being  paid.  The 
father  and  son  leave  sufficient  personal  property  to  pay  the  mortgage.  Held,  as  between 
the  heir  and  administrator  of  the  son,  the  mortgaged  estate  was  the  primary  fund  for  pay- 
ment.    Clarendon  v.  Barliam,  1  Y.  &  Coll.  Cha.  688. 


CHAP.  XXXV.]    SALE  OF  EQUITIES  OF  REDEMPTION,  ETC.  4.59 

be  apportioned  upon  No.  1  and  No.  2,  aecordiu;.,'  to  their  respective 
value,  and  the  former  dischar^^ed  from  the  mortgaj^e,  upon  payment  of 
the  amount  thus  eharged  upon  it ;  or  that  A  mi<iht  be  decreed  to  ac- 
cept his  lUibt  from  C,  and  assign  the  mortgage  to  him.  It  appeared  that 
in  July,  1821,  B  sold  No.  2,  the  purchaser  having  received  a  verbal 
promise  from  A  to  release  his  claim  to  it  under  the  mortgage.  In  Feb- 
ruarv,  1822,  after  C's  purchase  of  No.  1,  A,  without  con.-i4tfrali«'n,  ac- 
cordingly made  a  release,  lleld,  this  was  not  a  case,  where  C,  as  a 
party  interested  in  one  of  two  mortgaged  estates,  might,  by  the  aid  of 
equitv,  throw  the  burden  upon  the  other,  because  A's  interest  would 
be  thereby  injured  ;  but  that  C  was  entitled  to  relief,  either  by  paying 
A  his  debt,  and  taking  a  conveyance  of  all  the  property  still  incum- 
bered by  the  mortgage  ;  or  by  paying  such  proportion  of  the  debt,  as 
the  value  of  C's  purchase  bore  to  that  of  all  the  estate  holden  in  securi- 
ty ;  that  the  court  were  bound  to  regard  the  equitable  situation  of  the 
property  at  the  time  of  C's  purchase,  taking  into  view  A's  jjarol  obliga- 
tion to  release  a  part  of  it,  as  any  other  course  would  be  punishing  him 
for  the  benevolent  act  of  relinquishing  a  part  of  his  security  ;  and  that 
C,  not  being  a  mere  speculator  or  volunteer,  but  having  purchased  ia 
consequence  of  his  being  bail  for  B,  was  entitled  to  the  jjrivilege,  which 
A  would  otherwise  have  had,  of  electing  between  the  two  modes  of  re- 
lief above  named. (1) 

44.  A  mortgaged  two  estates  to  B,  then  one  to  C,  then  both  to  B, 
for  the  former,  and  also  another  debt ;  then  both  to  D,  with  notice  of 
the  prior  incumbrances.  The  property  was  not  sufficient  to  pay  all 
the  claims,  but  No.  32  was  sufficient  to  pay  B.  Held,  as  between  C 
and  D,  the  court  would  not  require  B  to  satisfy  his  whole  claim  from 
No.  82,  so  as  to  give  C  a  prior  lien  upon  the  other  land,  but  B's  claim 
might  he  charged,  rateably,  upon  both  estates.(2)(u) 


CHAPTER    XXXV. 

SALE  OP  EQUITIES  OF  REDEMPTION  ON  EXECUTION. 


1.  Estate  of  mortgagor — universally  liable 

to  execution. 

2.  Effect  of  sale — mortgagor's  right  after 

sale. 

7.  Levy  upon  two  executions, 

8.  Levy  in  case  of  disseizin. 

9.  No  vttster  of  mortgagee 
10.  Purcliaser  becomes  seized. 


12.  Attaclimcnt   of  equity — mortgage   dis- 

ciiarged  \ieforo  sale. 
15-21.  Redemption  from  purchaser — when, 

and  on  wliat  terms. 
16.  Fraudulent   mortgage;    sale  of  equity 

void. 
18.  Right  to  redeem  subsequent  mortgages. 


1.  TiiK  right  of  a  mortgagor  to  redeem  his  estate  is  almost  univer- 
sally liable,  in  the  United  States,  to  be  taken  upon  execution  by  his 

(1)  Chittenden  v.  Barney,  1  Verm.  23.        |      (2)  Barnes  v.  Raester,  1  T.  &  Coll.  Cha.  401. 

(a)  See  further,  as  to  the  subject  of  this  chapter,  Halliwell  v.  Tanner,  1  Russ.  A  My.  633  ; 
Goodburn  v.  Stevens,  1  Md.  Ch.  420;  Symons  v.  James.  2  T.  &  Coll.  (N.  S.)  301  :  Mansell, 
&c.,  1  Pars.  .^71  ;  Mason,  4c.,  1  Pars.  132;  Jones  v.  Bruce,  11  Sim.  221  ;  Ouseley  v.  Aa- 
struther,  10  Beav.  453;  IbbeUon  v.  Ibbetson,  12  Sim.  20G ;  Blount  v.  llipkius,  7,  43. 


460  SALE  OF  EQUITIES  [CHAP.  XXXY. 

creditors.(a)  This  liability  seems  to  be  a  necessary  incident  or  conse- 
quence of  the  principle,  already  considered  at  length,  that  the  mort- 
gagor, until  foreclosure,  and  as  to  third  persons,  remains  the  owner  of 
the  land,  while  the  mortgagee  has  a  mere  lien,  which  is  not  subject  to 
legal  process.  The  mortgagor's  actual  possession  is  unnecessary  to 
such  liabiiity.(l)  The  provisions  of  law  in  the  several  States,  relating 
to  the  seizure  and  sale  of  equities  of  redemption  upon  execution,  will 
be  particularly  stated  hereafter.  (Vol.  II.)  A  few  general  principles 
on  the  subject  are  stated  in  this  chapter. 

2.  In  Massachusetts,  by  Statute  1783,  c.  57,  an  equity  of  redemp- 
tion might  be  setoff,  as  land  subject  to  incumbrance,  to  the  judgment 
creditor,  and  the  debtor  might  redeem  the  right  in  equity  by  paying 
the  debt.  By  a  later  statute^  (1798,  c.  77,)  a  right  in  equity  might  be 
sold,  and  the  proceeds  applied  to  payment  of  the  debt;  and  the  debtor 
was  allowed  three  years  to  redeem.  The  provisions  of  the  Revised 
Statutes  upon  the  subject  will  be  stated  hereafter.  The  former  statu- 
tory rules  are  stated  by  the  court,(2)  as  above  mentioned ;  and  are  re- 
ferred to  in  this  place,  not  because  now  in  force,  but  merely  as  intro- 
ductory to  other  observations  of  the  court  in  the  same  case,  which 
seem  to  be  of  permanent  applicability,  and  probably  are  adopted,  in 
substance,  in  all  the  States. 

3.  Where  an  equity  of  redemption  is  taken  on  execution,  the  whole 
estate  of  the  debtor  is  taken  from  him.  A  mortgagor  is  considered  as 
the  owner,  against  all  but  the  mortgagee.  But  a  debtor,  after  such 
levy,  has  not,  strictly  speaking,  any  estate  or  interest  in  the  land.  He 
is  not  a  freeholder.  He  has  only  ixpossihiUty,  or  right  to  an  estate,  on 
payment  of  a  certain  sum  of  money.  The  law  presumes  that  he  has  re- 
ceived the  full  value  of  his  estate;  and  the  right  of  redemption,  still 
reserved  to  him,  is  a  mere  personal  privilege  to  keep  his  own  land,  if 
he  does  not  wish  to  part  with  it  at  its  full  value.  He  is  under  no 
obligation  to  redeem.     There  is  no  reciprocity  between  him  and  the 

(1)  Watkins  V.  Gregory,  6  Blackf.  113.         ]      (2)  Kelly  v.  Beers,  12  Mass.  388-9. 


(a)  In  New  Hampshire,  equities  of  redemption  have  always  been  held  liable  to  execution, 
and  the  Statute  of  July  3,  1822,  merely  has  the  effect  to  change  the  mode  of  levy,  from  an 
extent  to  a  sale.  Pritehard  v.  Brown,  4  N.  H.  402.  So  in  Maryland,  Kentucky,  North 
Carolina  and  New  York.  Waters  v.  Stuart,  1  Gaines  in  Er.  47  ;  1  Ky.  Rev.  L.  653  ;  Pratt 
V.  Lane,  9  Cranch,  456;  1  N.  C.  Rev.  Stat.  266.  Whether  in  Indiana,  quare.  Lasselle  v. 
Barnett,  1  Black.  153. 

In  Mississippi,  it  has  been  held  that  an  equity  of  redemption  is  not  subject  to  sale  on  exe- 
cution, unless  tiie  whole  debt  has  been  paid.  Boarman  v.  Catlett,  13  Sm.  &  M.  149  ;  Thorn- 
hill  v.  Gilmer,  4,  153.  See  Wolfe  v.  Lowell,  13,  103;  Henry  v.  Fullerton,  lb.  631; 
Farmers',  &a  v.  Commercial,  &c.,  10  Ohio,  71;  Hunter  v.  Hunter,  Walker,  194;  State  v. 
Lawson,  1  Eng.  269;  Morris  v.  Way,  16  Ohio,  469;  Whitaker  v.  Sumner,  7  Pick.  551; 
Pomeroy  v.  Winship,  12  Mass.  514;  Atkins  v.  Sawyer,  1  Pick.  351;  Thayer  v.  Felt,  4 
Pick.  354  ;  Commissioners,  &c.  v.  Hart,  1  Brev.  492  ;  State  v.  Laval,  4  McC.  336  ;  Punder- 
son  V.  Brown,  1  Day,  93  ;  Hinman  v.  Leavenworth,  2  Conn.  244  ;  Scripture  v.  Johnson,  3, 
211;  Kelly  v.  Burnham.  9  N.  H.  20;  Swift  v.  Dean,  11  Yerm.  323;  Naples  v.  Minier,  3 
Penns.  475;  Roberts  v.  Williams,  5  Whart.  170;  Tower's,  &c.,  9  W.  &  S.  103;  Kimball  v. 
Smith,  21  Yerm.  449;  Jones  v.  Thomas,  4  Ired.  12  ;  Allen  v.  Parish,  3  Ham.  526 ;  Dough- 
erty v.  Lithicum,  8  Dana,  194;  Trudear  v.  McYicar,  1  La.  Ann.  R.  426;  Governor  v. 
Powell,  9  Ala.  83;  Steward  v.  Allen,  5  Greenl.  103;  Warren  v.  Childs,  11  Mass.  222; 
White  v.  Bond,  16  Mass.  400  ;  Jenks  v.  Ward,  4  Met.  404 ;  Brown  v.  Worcester,  &c.,  8,  47  ; 
Slocum  v.  Catlin,  22  Yerm.  137  ;  Kranklin,  &g.  v.  Blossom,  10  Shepl.  546;  Swift  v.  Dean, 
11  Yerm.  323;  Kimball  v.  Smith,  21  Yerm.  449;  Houghton  v.  Bartholomew.  10  Met.  138; 
Phelps  V.  Butler,  2  Ohio,  331 ;  Ely  v.  McGuire,  lb.  330  ;  Davis  v.  Evans,  5  Ired.  525. 


CriAP.  XXXV.]  OF  llEDEiU'TION,  ETC.  4G1 

creditor.     The  creditor   cannot  demand    tlie   money,    but    i.s    merely 
bouml  to  convey  the  land,  on  receivinj^  payment  in  ii  certain  time. 

4.  Upon  the.se  ^'rounds,  the  ri^ht  i'l  question  was  held  not  liable  to 
be  aj;aii)  taken  upon  exeeution.(«)  The  court,  in  their  opinion,  remark 
thatlhe  leiiislature  mi,-;ht  have  made  it  thus  liable  ;  but  have  not  done 
so,  probably  because  it  was  considered  of  no  value.  Real  cskila  mart- 
garjed  is  made  subject  to  execution  ;  because  land  is  usualljrTnort;-'-a;/cd 
for  Kss  than  its  value,  and  the  right  of  redemption,  tlR-relbre,  is  a 
valuable  interest.  Nor  can  it  be  said  that  the  drbtor,  after  such  sale, 
stiU  owns  his  former  right  of  redemption,  but  subject  to  a  new  lien  bj 
the  purchaser.  This  is  not  the  language  of  the  statutes.  Ilis  whole 
estate  is  taken  from  him.  His  remaining  right  is  like  a  right  of  jJJ'e- 
eruption,  as  if  the  {)urchascr  had  covenanted  to  convey  to  him  at  a  cer- 
tain price,  paid  in  a  certain  time.(l) 

5.  The  following  case  further  illustrates  the  same  general  principle. 

6.  A  made  a  mortgage  of  certain  land.  August  8,  1811,  his  equity 
of  redemption  was  sold  on  execution  to  B.  Afterwards,  on  the  same 
day,  another  deputy  shcrilf  undertook  to  sell  the  same  right,  upon 
another  execution,  to  C,  and  gave  him  a  deed  of  it.  August  18,  the 
same  right  was  sold  and  conveyed  upon  a  third  execution  to  D.  D. 
brings  a  real  action  for  the  land  against  A.  Held,  no  title  had  vested 
m  D.{2) 

7.  But  where  the  same  equity  of  redemption  is  simultaneously  at- 
tached by  two  creditors,  both  executions  may  be  levied  upon  it,  and 
eaeh  creditor  will  be  entitled  to  a  moiety  of  the  proceeds,  without 
reference  to  the  relative  amouni  of  the  debts.  They  hold,  not  in  shares 
or  proportion,  hut  per  mie  et  per  tout.  But  as  the  attachment  constitutes 
merely  a  lien  in  security  of  a  debt,  if  the  moiety  which  either  can 
hold  is  more  than  .suflicicnt  to  satisfy  his  debt,  the  surplus  will  go  to 
the  other.(8)(6) 

(1)  12  Mas.^.  339-90.  I      (3)  Sigourney  v.  Eaton,  14  Pick,  414. 

(2)  Kelly  V.  Beers,  12  Mass.  387.  | 

(a)  But,  if  mortgaged  anew,  the  new  equity  of  redemption  may  be  taken.  Reed  v.  Bige- 
low,  5  Pick.  281.  In  Kentucky,  the  dehtor  may  validly  convey  liis  interest,  after  an  execu- 
tion pale  of  his  equity  of  redemption.  Hibhet  v.  Spurrier,  3  B.  Monr.  470.  In  Maine,  such 
interest  is  liable  to  be  taken  on  execution.     Me.  Rev.  St.  390. 

(ft)  1^1  levying  execuiion.s,  wiiere  .simultaneous  attachments  have  been  made,  an  officer 
may  seize  the  whole  estate,  but  should  only  return  a  moiety,  in  case  of  two  such  executions, 
upon  either  of  the  executions.  Perry  v.  Adams,  (Mass,)  Law  Rep.  Jan.  1842,  p.  354. 
"Wiiere  land  is  simultaneously  attached  upon  two  writs,  and  one  of  the  attaching  creditors 
levies  upon  the  whole  land  by  metes  and  bounds,  the  other  may  levy  upon  an  undivided 
moiety  or  an  undivideu  sliare,  not  exceeding  such  moiety,  sufficient  to  satisfy  his  execution, 
Durant  v.  Johnson,  10  Pick.  544.  Two  executions  were  sinmltancously  levied:  one  upon 
the  whole  land  by  meies  and  liound.s,  the  other  upon  fburteen-fifteeniiis  of  one  undivided 
halfot  it.  Held,  the  latter  made  the  e.Kccution  creditor  a  tenant  in  common  with  the 
former  creditor  of  tlie  whole,  and  not  a  moiety  only,  of  the  fourteen-fifteenths  of  an  undivided 
half.     Perry  v.  Adams.  3  Met.  51. 

It  has  been  held,  that  where  an  equity  of  redemption  is  miccessively  attached  by  diflferent 
creditors,  a  Si-le  on  execution  by  the  second,  belbre  the  lirst  has  recovered  judgment,  is  void 
against  all  the  others;  and  the  third  aequir -s  the  rights  of  the  second.  Pease  v.  Bancroft, 
5  Met  00.  (But  see  Mas.s.  Hev.  St-s  cb.  90,  sees.  34,  3  5.)  An  ofiQcer  may  legally  seize  an 
equity  of  redemption  on  two  e.veeutious,  sell  it  on  one,  satisfy  this  one  with  a  ptrt  of  the 
proeeed.s,  and  appl_v  the  l>al.ince  to  tlie  other.  Bacon  v.  Leonard,  4  Pick.  277.  If  an  equity 
is  tiikiMi  liy  dillerent  olficers,  and  the  proceeds  are  more  than  sullicient  to  satisfy  the  e.\ecu- 
tions  in  the  hands  of  the  oQieer  selling,  he  is  bound  to  pay  the  surplus  to  the  other  oflicers. 
Dennv  v.  Uamilion,  IG  Mass.  402.  See  Forbush  v.  WiUard,  16  Pick.  42;  Littlelield  v. 
Kimball,  5  Sliepl.  313;  AVade  v.  Merwin,  11  Pick.  280. 


462 


SALE  OF  EQUITIES 


[CHAP.  XXXT. 


8.  It  has  been  held,  that  a  right  in  equity  to  redeem,  being  a  mere 
incorporeal  hereditaniient^  will  pass  by  sale  on  execution,  though  the  land 
have  been  long  in  the  possession  of  a  disseizor,(l)  In  an  earlier  case, 
however,  or  a  previous  hearing  of  the  same  case,  it  was  remarked,  that 
an  execution  purchaser  might  maintain  a  real  action  for  the  land  against 
a  stranger,  unless  ihe  latler  liad  disseized  the  mortgagor  before  the  sale.(2) 
The  true  principle  upon  this  subject,  and  one  which  seems  to  reconcile 
the  apparent  contradiction  between  the  former  cases,  has  been  settled 
in  a  case  long  subsequent  to  both  of  them.(3)  It  is  here  held,  that  if 
the  mortgagor  is  seized,  at  the  time  of  the  sale  on  execution,  the  sheriff's 
deed  conveys  to  the  purchaser  the  morigngov  s  actual  seizin,  precise!}^  as 
a  deed  by  the  mortgagor  himself  would  have  done ;  but  if  the  mort- 
gagor is  not  seized,  then  the  sheriff's  deed  passes  not  a  seizin,  but  a 
right  of  entry.  In  the  latter  case,  it  seems,  the  deed  of  the  sheriff  is  not 
invalid,  on  account  of  an  adverse  possession  by  a  stranger  ;(a)  because, 
if  this  were  the  case,  creditors  would  have  no  power  to  take  an  equity 
of  redemption  for  their  debts,  where  the  mortgagor  is  disseized.  The 
entry  of  the  sheriff  could  not  purge  the  disseizin,  no  entry  being  neces- 
sary to  a  sale.  The  judgment  creditor  could  not  enter,  having  no  right 
before  the  levy  ;  and  the  purchaser  has  no  interest  till  after  the  sale. 
The  mortgagor  could  not  be  expected  to  enter  for  the  purpose  of 
having  the  land  taken  from  him  by  execution.  Hence,  the  sheriff's 
deed  must  pass  a  seizin  in  law.  The  purchaser  may  enter,  and  then 
bring  a  writ  of  entry  upon  his  own  seizin;  or,  perhaps,  before  entry, 
he  might  bring  an  action,  founded  upon  the  seizin  of  the  mortgagor,  to 
whose  rights  he  has  succeeded. 

9.  The  sale  on  execution,  of  a  right  in  equity  to  redeem,  will  not 
operate  as  an  ouster  of  the  mortgagee,  who  has  previousl}^  entered 
under  his  mortgage.  Such  sale  is  effectual  in  passing  to  the  purchaser 
all  the  rights  of  the  mortgagor;  and  an  entry  for  the  purpose  of 
seizing  and  levying  upon  such  right  is  no  trespass.  It  is  consistent 
with  the  rights  of  the  mortgagee.  But,  for  any  subsequent  entry,  the 
mortgagee  may  maintain  trespass  against  the  purchaser,  without  a  re- 
entry.(4)(Z;) 

10.  The  Statute  of  1798,  c.  76,  provided,  that  the  sheriff's  deed  of  a 
right  in  equitj'  should  pass  the  title,  in  the  same  manner  as  a  deed  exe- 
cuted by  the  debtor  himself  Hence  such  purchaser  becomes  ^eized 
except  as  against  the  mortgagee,  and  may  maintain  an  action  for  the 
land,  without  actual  entry .(5) 

11.  So,  where  the  purchaser  of  an  equity,  sold  upon  execution,  had 
tendered  to  the  holder  of  the  mortgage  the  amount  due  upon  it;  held, 
he  had  acquired  a  seizin,  sufficient  to  sustain  an  action  for  the  land 
against  the  mortgagor.(6) 

12.  The  form,  in  which  executions  are  to  be  levied  in  the  several 


(1)  Willington  v.  Gale,  13  Mass.  483. 

(2)  Willington  v.  Gale,  7  Mass.  139. 

(3)  Poignard  v.  Smith,  6  Pick.    172.     See 
sees.  10,  11. 


(4)  Shepard  v.  Pratt,  15  Pick.  32. 

(5)  Willington  v.  Gale,  7  Mass.  138. 

(6)  Porter  v.  Millett,  9  Mass.  101. 
sec.  8.) 


(See 


(a)  See  Mass.  Rev.  St.  463. 

{b)  It  has  been  held  in  Kentucky,  that  an  equity  of  redemption  cannot  legally  be  sold, 
pending  a  suit  to  foreclose  the  mortgage,  and  if  sold,  though  upon  an  execution  prior  to  such 
suit,  the  mortgagee's  title  has  priority.     Addison  v.  Crow,  5  Dana,  279. 


CHAP.  XXXV.]  OF  RKDKMPTION',  ETC.  403 

States  upon  equities  of  redemption,  will  be  particularly  stated  in  an- 
other part  of  this  work.  K(piities  bein^  subject  to  aUaclrmcnl  as  well 
as  execution,  in  those  States  where  this  meihod  of  securin;.'  debts  is 
adopted,  the  question  has  arisen,  how  an  executicjn  is  to  be  levied, 
where  a  ^lort;,^1<i•e  is  dischari^ed  after  attachment,  and  before  sale.(t/) 

13.  A  mort<j^a;i:ed  to  B  on  the  15th  of  December,  laOO,  to.  secure 
$500,  and  on  the  29th  of  April,  1807,  mort^^iged  the  saimrland  to  B, 
to  secure  $300.  On  the  l«ih  of  July,  1807,  A  conveyed  tlfb  land  to 
C,  subject  to  the  mortgages.  On  the  23d  of  July,  1807,  C  Tnortpi;.rcd 
the  land  to  B,  to  secure  the  sums  of  $1,500  and  §837.  On  the  24th  of 
July,  1807,  B  discharged  A's  mortgages,  acknowledging  full  satisfac- 
tion. The  sums  secured  by  A's  mortgages  made  a  })art  of  tho.se  se- 
cured by  C's  mortgage.  On  the  18th  of  May,  1807,  D,  a  creditor  of 
A,  caused  A's  estate  in  the  land  mortgaged  to  be  attached ;  and,  in 
December,  1807,  levied  his  execution  upon  A's  equity  of  redemption, 
which  was  sold  by  the  officer  to  E.  Neither  D  nor  the  officer  knew 
the  fact,  that  B  had  discharged  the  mortgages  made  to  him  by  A.  E 
brings  an  action  against  B  to  recover  the  land.  Held,  if  at  the  time  of 
the  sale  on  execution,  there  was  no  subsisting  incumbrance  except  the 
mortgage  by  C,  which  arose  after  the  attachment,  then  the  levy  was 
void,  being  made  in  the  form  prescribed  in  relation  to  equities  of  re- 
demption ;  and  if  B's  mortgage  was  still  in  force,  then  the  purchaser's 
pro[)er  remedy  Avas  by  a  bill  in  equity  to  redeem.  B  either  still  con- 
tinued the  mortgagee,  notwithstanding  the  discharge,  or  the  assignee  of 
C,  fur  whose  benefit  the  mortgages  were  still  to  be  considered  in  force. 
And  E  could  not  be  held  to  gain  an  equitable  title  by  his  purchase, 
auil  at  the  same  time  treat  the  mortgages  as  extinguished,  without  any 
expense  to  him.  Upon  the  possible  supposition,  that  the  mortgage 
had  been  redeemed  by  A,  E  could  make  no  title  except  upon  the 
ground  that  the  incumbrances  still  subsisted  for  A's  benefit,  and  to 
secure  to  him  the  money  paid  for  E's  use.  E  came  in  the  right  of  A, 
and  could  not  claim  against  the  mortgages  to  B,  who,  if  E  had  any 
title,  was  a  mortgagee  in  possession,  or  the  assignee  of  a  subsistino- 
mortgage,  originally  made  to  himself;  and,  as  to  E,  claimed  under 
mortgages  not  redeemed  or  discharged,  and  subject  to  which  his  title 
was  acquired.  As  a  general  rule,  it  may  perhaps  be  said,  that  the  pur- 
chaser of  an  equity  of  redemption  can  aver  no  seizin  or  title  against 
any  other  person  than  the  execution  debtor,  or  his  immediate  tenants 
or  a.ssigns.  Hence,  though  E  might  recover  against  C,  he  could  not 
recover  against  B,  having  no  legal  seizin  or  title,  till  Ws  mortgage  was 
redeemed. (1) 

14.  In  this  case  it  is  laid  down,  tljat  the  mode  of  levying  the  execu- 
tion upon  the  interest  of  a  mortgagor,  is  to  be  determined  by  the 
situation  of  his  estate  at  the  time  of  attachment;  and,  if  at  that  time 
the  mortgage  was  extinguished,  though  before  the  levy  a  new  mort- 
gage was  made,  a  levy  as  upon  an  equity  of  redemption  is  void.  From 
this  decision,  it  would  seem  to  be  a  necessary  inference,  that  the  con- 
verse of  the  proposition  must  also  be  true;  and,  if  the  land  is  subject 

(1)  Forater  v.  Mellen,  10  Mass.  421. 

(a)  In  Maine,  where  an  equity  of  redemption  is  attnclicd,  the  creditor  may  require  the 
mortgagee  to  state  an  account  of  bis  claim.     Me.  Rev.  ^t.  584. 


464 


SALE  OF  EQUITIES 


[CHAP.  XXXV. 


to  mortgage  at  the  time  of  attachment,  but  the  mortgage  is  extinguished 
before  the  sale,  that  the  levy  cannot  be  made  by  metes  and  bounds,  as 
upon  a  legal  estate,  but  only  by  the  sale  of  an  equity  of  redemption.. 
But,  in  a  later  case,  a  contrary  doctrine  seems  to  be  advanced.  _  It  is 
said,  that  the  attachment  merely  fixes  a  lien  on  the  premises,  without 
transferring  the  title  or  affecting  the  nature  of  the  estate.  The  mode 
of  levy,  th'e  act  by  which  a  title  is  to  be  transferred,  it  would  seem, 
must  be  determined  by  the  nature  of  the  debtor's  title  at  the  time  of  the 
levy,  and  not  at  the  time  of  the  attachment.  The  equity  of  redemption 
is  in  fact  gone,  and  it  would  seem  to  be  absurd  to  pursue  a  mode  solely 
applicable  to  a  subsisting  equitable  estate,  when  such  estate  no  longer 
exists.  These  remarks  are  made,  without  reference  to  any  statutory 
provision,  but  the  court  consider  the  case  as  provided  for  by  an  express 
statute.(l)(a) 

15.  The  lien,  created  by  the  attachment  of  an  equity  of  redemption, 
may  extend  beyond  the  amount  of  the  judgment  recovered  in  the  suit, 
and  cover  the  whole  amount  for  which  the  equity  is  sold  upon  execu- 
tion. Thus,  where  the  mortgagor,  after  such  attachment,  conveys  his 
right  in  equity  to  a  third  person,  and  the  equity  is  afterwards  sold  on 
execution,  for  a  much  larger  sura  than  the  amount  of  the  excution  ;  as 
the  surplus  belonged  to  the  mortgagor,  not  to  the  purchaser  from  him, 
the  latter  cannot  redeem,  without  paying  the  whole  purchase-money 
paid  to  the  sheriff  (2) 

16.  A  mortgage,  made  to  defraud  creditors,  is  as  to  them  void,  and 
creates  no  equity  of  redemption,  liable  to  be  taken  on  execution. 

17.  A  mortgaged  land  to  defraud  his  creditors.  B,  one  of  the 
creditors,  attached  A's  equity  of  redemption.  Pending  this  attachment, 
C,  another  creditor,  extended  an  execution  upon  the  land,  treating  it 
as  unincumbered  property.  Afterwards,  A's  equity  of  redemption 
was  sold  on  execution,  and  in  completion  of  the  attachment,  to  an 
innocent  purchaser,  D.  In  an  action  to  recover  the  land,  brought  by 
C  against  D  ;  held,  the  sheriff's  sale  was  void,  no  equity  of  redemption 
having  been  created  by  the  mortgage,  and  that  C  had  a  good  title  to 
the  land.  If  D  had  claimed  by  a  direct  purchase  from  A  himself,  he 
would  have  taken  the  land  free  of  incumbrance,  as  an  innocent  {our- 
chascr.  But,  claiming  by  a  statute  title,  he  was  bouml  to  prove  every- 
thing necessary  to  constitute  such  title.  In  authorizing  the  sale  of  an 
equity  of  redemption,  the  legislature  contemplate  the  existence  of  a 
valid  mortgage.  Moreover,  a  creditor  may  levy  upon  the  land  of  his 
debtor,  and  thereby  acquire  as  good  title  as  the  latter  had  therein  ;  and, 
in  regard  to  his  creditors,  a  fraudulent  grantor  has  a  perfect  title.  Nor 
can  one  creditor,  by  attaching  an  equity  of  redemption,  and  thereby 


(1)  Freeman  v.  McGaw,  15  Pick.  83-4. 
(See  Mass.  Rev.  St.  550 ;  Litchfield  v.  Cud- 
worth,  15  Pick,  2:^,  Mechanics',  &c.  v.  Wil- 
liams, 17,  438;  N.  H.  Rev.  St.  369.)  Pills- 
bury  V.  Smith,  25  Maine,    427 ;    Goodall  v. 


Rovvell,  15  N.  H  572;  Abbott  v.  Sturtevant, 
30  Maine,  40;  Dougherty  v.  Snjithicum,  8 
Dana,  194. 

(2)  Gilbert!'.  Merrill,  8  Greenl.  295. 


(a1  Where  an  equity  of  redemption  is  seized  on  execution,  and  the  mortgatre  debt  is  then 
paid  before  sale,  there  may  still  be  a  sale  of  the  equity,  tlie  proceedings  having  relation  to 
the  seizure.     Bagley  v.  Bailey,  4  Shepl.  151. 


CHAP.  XXXV.]  OF  REDEMPTION,  ETC.  465 

reco^^uizin;.^  tho  mortL'a^c  as  valid,  deprive  others  of  the  ri^ht  to  treat 
it  as  void,  by  seizing  the  hmd  itself. (!)('«) 

18.  Tlie  right  of  redeeming  subsequent  mortgages  may  be  taken  in 
execution. 

19.  The  creditor  of  a  mortgagor  liaving  attached  an  equity  of  re- 
demption, the  debtor  made  anotlier  mortgage,  after  which  all  his 
Intercast  in  the  land  was  attached  by  another  creditor.  The.eqi"lity  first 
attaehetl  was  then  .'-old  on  exeeutit)n,  which  was  sali.<fied  by  a  part  of 
the  proceeds;  and,  before  the  officer  had  paid  over  the  surplu.'^,  the 
execution  of  the  second  creditor  was  delivered  to  him,  Ilcld,  the 
surplus  belonged  to  the  second  mortgagee;  and  the  second  creditor 
might  levy  on  ihe  right  of  redeeming  the  second  mortgage.(2) 

20.  In  Massachusetts,  if  the  mortgagor  does  not  within  a  year  redeem 
his  equitv  ol'  redemption,  sold  on  execution,  his  whole  interest  is  lost, 
and  lie  cannot  redeem  the  mortgage,  though  the  purchaser  does  not 
redeem. (8  )(A) 

21.  Where  rights  in  equity,  of  redeeming  distinct  parcels  of  land 
from  several  mortgages,  are  sold  upon  one  execution,  they  ought  to  be 
sold  separately,  and  not  for  a  gross  sum ;  for  the  debtor  has  a  right  to 
redeem  one  without  redeeming  others.  But  a  third  person  cannot 
object  to  a  joint  sale.(4)(c) 

(1)  Bullard  v.  Hinkley,  6  GreenL  289.    See  i      {^)  Inpensoll  v.  Sawyer,  2  Pick.  276. 
ch.  36,  sec.  14.  (4)  Fletclier  v.  Stone,  3  Pick.  250. 

(2)  Clark  v.  Austin,  2  Pick.  528.  I 


(a)  An  execution  purchaser  of  an  equity  of  redemption,  who  receives  a  deed  from  the 
oflBcer  for  the  benefit  of  the  creditor,  cannot  dispute  tlie  mortjrape  as  fraudulent,  and  on  that 
ground  claim  the  land  as  unincumbered.     Russell  v.  Dudley,  3  Met.  147. 

The  court  remark,  it  was  at  tho  opiion  of  the  creditor  to  treat  the  mortgage  as  invalid, 
and  set  off  tlie  estate  by  appraisement;  or  to  treat  it  as  valid,  and  sell  the  right  of  redemp- 
tion. But  he  could  not  treat  the  mortgage  as  subsisting,  so  as  to  warrant  a  sale,  and  then, 
when  ho  had  taken  h\i*  deed,  treat  the  mortgage  as  a  nullity,  and  claim  the  estate  in  fee. 
The  creditor,  by  treating  it  as  a  subsisting  mortgage,  is  afterwards  estopped  to  deny  its 
existence;  and  the  demandant,  purchasing  with  notice  for  his  use,  is  also  estopped.  And 
even  if  lie' had  purcliased  without  notice,  having  purchased  the  premises  as  aii  equity  of  re- 
demption, which  could  not  exist  without  a  subsisting  mortgage,  ho  would  be  as  much 
estopped  to  contest  tho  mortgage  as  if  it  had  been  recited  in  his  deed.     lb. 

But  where  A,  a  second  mortgagee,  took  an  assigntnent  of  tlie  first  mortgage,  and  a  release 
of  the  equitv  of  redemption  from  B,  the  mortgagor,  and  afterwards  a  creditor  of  B  levied 
an  execution  upi>n  his  equity  and  purcliased  it  himself;  held,  in  support  of  his  title,  such 
creditor  n)ight  show  that  A  obtained  his  mortgage  and  release  I'j-  fraud  upon  B,  though  li 
had  not  attempted  to  avoid  them.     Van  Deusen  v.  Frink,  15  Pick.  449. 

(b)  Under  tho  Revised  Statutes,  ch.  73,  sees.  44,  46,  if  the  purciiaser  refuse  to  release  the 
equity,  upon  a  tender  by  the  debtor  or  liis  assigrneo  of  the  sum  due  him  therefor,  a  writ  of 
entry  iies  U^  recover  the  equity.     Hooker  v.  Hudson,  19  Pick.  467. 

A  sul).sequent  demand  for  the  money,  made  liy  the  pnrohaser,  but  after  dark,  is  unseason- 
able, and  does  not  avoid  the  tender.  Tucker  v.  BnlTum,  16  Pick.  46.  In  Maine,  where  the 
execution  purchaser  redeems  tiie  mortgage,  and  within  the  year  the  mortgagor  redeems  the 
equity,  the  latter  may  redeem  the  mortgage  from  the  former  as  he  might  from  the  mortgagee. 
ile.  Rev.  St.  557.      . 

(c)  The  right  to  redeem  an  equity  of  redemption,  sold  on  execution,  is  validly  assigned 
in  equitv  l>y  a  common  quit-claim  deed,  whicli  remises,  releases  and  quit-claims  tho  party's 
right  and  interest  in  and  to  the  mortgaged  premises,  h'tbendum  to  the  grantee,  his  heirs  and 
assigns.  Tucker  v.  Bufluni,  16  Pick.  46.  Where  an  equity  is  sold  on  execution,  tho  pur- 
chaser takes  tho  place  of  the  debtor,  and  holds  subject  to  all  incumbrances.  Crow  v.  Tina- 
ley,  6  Dana,  402. 

Vol.  I.  30 


466 


MORTaAGE,  WHEN 


[CHAP.  XXXVI. 


CHAPTER  XXXYI. 


MORTGAGE,  WHEN  VOID  OR  VOIDABLE. 


1.  General  remarks. 

2.  Usury. 
11.  Infancy. 


13.  Eviction. 

14.  Fraud. 


1.  In  many  respects,  a  mortgage  is  not  distinguishable,  with  refer- 
ence to  the  circumstances  which  render  it  void  or  voidable,  from  an 
absolute  deed.  The  extensive  title  of  Deed  will  be  considered  hereafter, 
(see  Vol.  II.,)  and  therefore  the  subject  will  be  very  briefly  noticed  in 
the  present  connection. 

2.  It  has  been  held,  in  the  Supreme  Court  of  the  United  States, 
that,  upon  a  bill  for  foreclosure,  the  mortgage  may  be  declared  void 
for  usury. {V) 

.  3.  The  doctrine  is  laid  down  in  New  York,  that  if  a  lender  seeks  to 
enforce  his  securities  in  equity  against  the  mortgagor  or  his  assignee, 
usury  is  a  defence,  and,  if  it  be  made  out,  the  court  will  order  that  the 
securities  be  delivered  up  and  cancelled.(a)  But  where  a  mortgage 
contains  a  power  of  sale,  under  which  the  mortgagee  is  proceeding  to 
foreclose,  without  the  aid  of  a  court  of  equity,  and  ihe  horroicer  files  a 
hill  for  relief ;  he  has  been  held  to  pay  so  much  as  is  lawfully  due, 
before  relief  will  be  granted. (2)  A  vendee  under  such  power  has  the 
better  equity,  and  will  acquire  a  good  title,  though  the  mortgage  is 
usurious.(o)     But  if  the  mortgagee  himself  purchase  through  an  agent, 


(1)  De  Butts  V.  Bacon,  6  Cranch,  252.  See 
Dyer  j;.  Lincoln,  11  Verm.  300;  Pearsall  v. 
Kingslaud,  3  Edw.  195;  Hodgkinson  v.  Wyatt, 
4  Ad.  &  Kll.  (N.  S.)749;  Blackburn  v.  War- 
wick, 2  Y.  &  Coll.  92;  Morris  v.  Way,  16 
Ohio,  469 ;  N.  Y..  &c.  v.  American.  &c.,  3 
Sandf.  Cb.  215;  Mumford  v.  American,  &c., 
4  Comst.  463;  Mitchell  v.  Preston,  5  Day, 
100 ;  Tyson  v.  Rickard,  3  Harr.  &  J.  109  : 
Morgan  v.  Tiptou,  3  McL.  339  ;  Lane  v. 
Losee,  2  Barb.  56  ;  Miller  v.  Hull,  4  Denio, 
104;  Robertson  v.  Campbell,  2  Call,  354; 
Tliomes  v.  Cleave.^,  7  Mass.  361  ;  Jackson  v. 
Packard,  6  Wend.  415;  Hodgkinson  v. 
Wyatt,  4  Ad.  &  Ell.  (N.  S.)  749;    Bush  v. 


Livingston,  2  Caines'  Cases  in  Error,  66 ;  De 
Butts  V.  Bacon,  6  Cranch,  252  ;  Nichols  v. 
Cosset,  1  Root,  294;  Shermans.  Gassett.  4 
Gilm.  521;  Righter  v.  Statt,  3  Sandf.  Cha. 
608;  Cotheal  «.  Blydenburgh,  1  Halst.  Cha. 
17,  631;  Gambril  v.  Rose,"  8  Blackf.  140; 
Brooks  V.  Avery,  4  Comst.  225  ;  Fox  i;.  Lipe, 
24  Wend.  164;  Stouey  v.  American,  &c.,  11 
Paige,  655 ;  Neefus  v.  Vanderveer,  3  Sandf. 
Oh.  268;  Jackson  v.  Golden,  4  Cow.  266; 
Warner  v.  Gouverneur,  1  Barb.  36. 

(2)  Fanning  v.  Dunham,  5  John.  Cha.  122; 
Wilson  V-  Hardesty,  1  Md.  Ch.  66. 

(3)  Jackson  v.  Henry,  10  John.  185. 


[a]  If  a  borrower  of  money  upon  usurious  interest  seeks  to  have  the  aid  of  a  court  of 
equity-  in  cancelling  or  procuring  the  instrument  to  be  delivered  up,  the  court  will  not  inter- 
fere in  his  favor,  unless  upon  tlie  terms  thiit  he  will  pay  tlie  lender  what  is  really  and  hona 
fide  due  to  him.  But  if  tlie  lender  comes  into  equity,  to  assert  and  enforce  his  own  claim, 
under  the  instrument,  there  the  borrower  may  show  the  invalidity  of  the  instrument,  and 
have  a  decree  in  his  favor  and  a  dismissal  of  tlie  bill,  witliout  pajing  the  lender  anything; 
for  the  court  will  never  assist  a  wrong-doer  in  efifectuating  ids  wrongful  and  illegal  purpo.se. 
1  Story  on  Equ.  (3d  ed.)  77.  Contra,  Cunningham  v.  Davis,  7  Ired.  Equ.  5.  But  see  Bal- 
linger  v.  i'ld wards,  4  Ired.  Kqu.  449.  It  is  held,  tiiat  parol  evidence  is  admissible,  to  prove 
a  deed  absolute  in  form  to  have  been  given  as  seeuritj'tor  usurious  interest.  Stapp  v.  Phelps, 
7  Dana,  300 ^  Cook  v.  (.'olyer,  2  B.  lUm.  72.     Bat  see  13  Mm.ss.  443  ;   6  Greenl.  303. 

In  Mussachusetts,  it  has  been  lately  suggested  as  a  doubtful  point  wliether,  in  a  bill  to 
redeem,  the  plaintiff  can  deduct  penalties  for  usury  from  the  mortgage  debt.  Robinson  v. 
Guild,  12  Met.  328. 


CHAP.  XXXVI.]  VOID  OR  VOIDABLK.  467 

the  rnort<j,agt)r  may  recover  the  land.     Usury  between  the  mortga^^ee 
and  his  aysi<;nee  is  no  defence  lor  the  nK)rt<fa<^for.(l) 

4.  It  has  been  doubted  by  hi;ih  authority,  whether  the  purchaser  of 
an  equity  of  redemption  can  object,  that  the  inort^^a;j;e  was  made  upon 
usurious  consideration,  or,  as  plaintill"  can  have  any  relief  in  equity, 
without  offering  to  pay  the  amount  due.{2)(a) 

5.  Where  a  mortgaj^e  is  assi;;iied  for  the  amount  dZio  upon  it,  and 
the  mortgagor  a;nrees  to  repay  the  assignee  a  sum  e.\ceedin<^  this  amount 
and  legal  interest,  he  cannot  avoid  the  mortgage  ui)on  this  ground,  but 
will  be  required  to  pay  only  the  lawful  sum  due.(cJ) 

6.  A  mortgage,  made  upon  usurious  consideration,  is  void  only  as 
against  the  mortgagor,  and  those  lawfully  holding  under  him.  Tiius, 
it  is  good  in  the  hands  of  a  lessee  of  the  assignee  of  the  mortgage, 
A  subsequent  mortgagee  cannot  impeach  it;  nor  a  purchaser  of  the 
equity  of  I'odemption,  subject  to  payment  of  the  mortgage.  But  a  pur- 
chaser from  the  mortgagor  may  niuke  this  defence  against  an  assignee 
of  the  mortgage.     So,  a  judgment  creditor  of  the  mortgagor.(4) 

7.  If  a  judgment  has  been  recovered  upon  a  usurious  contract  se- 
cured by  mortgage,  and  a  new  mortgage  given,  the  mortgagor  cannot 
resist  a  suit  on  the  latter,  upon  the  ground  of  usury. (5) 

8.  So,  where  a  mortgagee  sues  upon  a  mortgage,  and  the  mortgagor 
defends  upon  the  ground  of  usur3',  but  fails,  and  afterwards  conveys 
his  riglit  in  the  land  ;  the  assignee  cannot  maintain  ejectment  against 
the  mortgagee  upon  this  ground,  being  estopped  by  tlic  ibrmer  judg- 
ment.(()) 

9.  It  is  said,  that  after  foreclosure  by  entry  and  continued  possession, 
the  mortgagee  has  a  perfect  title  to  tlie  land,  though  the  mortgage  debt 
was  usurious,(7)  But  a  mortgagor  shall  always  be  allowed  to  avail 
himself  of  the  defence  of  usury,  unless  he  has  been  guilty  of  laches. 
Thus,  where  an  equity  of  redemption  was  soTd  on  execution,  and  after 
a  year  the  purchaser  took  an  assignment  of  the  mortgage,  the  mort- 
gagor having  always  retained  possession;  held,  the  latter  might  set  up 
usury  as  a  defence  to  an  action  of  ejectment  for  the  land. (8) 

10.  In  Pennsylvania,  a  usurious  contract  is  not  absolutely  void. 
Hence,  a  mortgagee,  in  such  case,  may  recover  the  amount  loaned,  with 
legal  interest,(9)(i) 

11.  The  mortgage  of  a7i  infant  is  voidable  only,  not  void.  Hence, 
where  an  infant  mortgaged  his  land,  and,  after  coming  of  age,  made  a 

(1)  Jackson  i>.  Dom in ick,  14  John.  435.        i  Cli.   564;  Brigf,'s  v.    Sholes,    15  N.  H.  52; 

(2)  (Jordoii  V.  riobart,  2  Sumn.  401.  Post  v.  Dart,  8  Paige,  639. 

(3)  Busii  V.   Livingston,  2  Guinea' Ca.s.  in        (5)  Tliacher  v.  Gammon,    12  Mass.   268; 


E.  66, 

(4)  Green  v.  Kemp,  13  Mass.  515;  Bridge 
v.  Hu'tihnrd,  15,  103;  Jackson  v.  Bowen,  7 
Ci)\v.  13  ;  Median ie.'?,  &c.  v.  Edwards,  I  Barb. 
27;   Morris  r.  l-'loyd,  5  Biirlj.   130;  Tlionia.s 


Mumford  v.  American,  Ac,  4  Comst.  463. 

(6)  Adams  v.  Barnes,  17  Mass.  365.     See 
Grow  V.  .\lbee,  19  Verm.  540. 

(7)  Flint  V.  Sheldon,   13   Mass.  450.    Sec 
Bard  v.  Fort,  3  Bi.rb.  Ch.  G32. 


ton,  Ac.  I'.  Slimpson,  8  Sliepl.   195;   Doub  v. '        (8)    Rii.'hard.soii    v.    Field.    0    Grcenl.    35. 
Barnes.  1  Md.  Cli    127;  Brooks  v.  Avery,  4    See  Hvland  v.  StalTord.  10  Barb.  55S. 
Comst.   225;    IJelfield  v.  Newton,   3  Sund£  |       (9)  Turner  v.  Calvert,    12   .Sit.  &   R.   46; 

I  Wycollt;.  Longhead,  2  Dall.  92. 

(a)  In  North  ("arolina,  usury  cannot  be  set  up  as  against  a  bona  fide  purchaser  of  land. 
N.  C.  St.  1842-43,   107. 

{b)  In  Mas.sachuseits  mortgages  made  for  a  gambling  consideration  arc  void ;  and,  when 
declared  void,  the  lands  paaa  to  the  heirs  of  the  mortgagor.     Rev.  St.  387. 


468  MORTGAGE,  WHEN  [CHAP.  XXXYI. 

deed  of  the  land,  recognizing  and  subject  to  the  mortgage  ;  the  latter 
deed  was  held  lo  be  a  "confirmation  of  the  former  one,  and  the  mort- 
gagee recovered  judgment  against  the  second  grantee. (1) 

12.  So,  where  A  conveyed  land  to  B,  an  infant,  at  the  same  time 
taking  back  a  mortgage  for  the  purchase-money ;  and  B  occupied 
after  coming  of  age,  and  conveyed  with  warranty  to  C ;  held,  both 
the  occupancy  and  the  conveyance  amounted  to  a  confirmation  of  the 
mortgage.(2) 

13.  To  an  action  of  ejectment  by  a  mortgagee  against  the  mortgagor, 
it  is  a  good  defence,  that  the  latter  has  been  evicted  from  the  land  by  a 
paramount  title;  notwithstanding  he  has  become  a  purchaser  under 
such  title,  and  continues  to  occuj)y  the  land.(o)(a) 

14.  It  will  be  seen  hereafter,  that  all  deeds  made  to  defraud  creditors 
are  void.  There  is  no  difference,  in  this  respect,  between  mortgages 
and  absolute  deeds.  But  a  distinction  has  been  taken,  with  respect  to 
this  ground  of  avoiding  a  mortgage,  between  a  suit  at  law  and  a  bill  in 
equity. 

15.  In  New  York,  it  is  held,  that,  where  a  mortgage  is  made  to  one 
as  trustee,  upon  a  bill  for  foreclosure,  the  mortgagor  is  estopped  to 
question  the  validity  of  the  trust.(4)  So,  in  Connecticut,(5)  upon  a  bill 
for  foreclosure,  it  is  held  that  the  titk  of  the  mortgagee  cannot  be  in- 
quired into.  Hence,  where,  after  production  of  the  note  and  mortgage, 
certain  attaching  creditors  of  the  mortgagor  set  up  as  a  defenceto  such 
bill,  that  the  rnortgage  was  fraudulent  and  void  against  creditors ;  it 
w\as  held  that  such  evidence  was  admissible.  The  court  remarked, 
that  if  the  title  to  land  might  be  brought  in  question  in  this  process, 
then  it  must  be  local ;  whereas,  by  the  established  law,  a  bill  lor  fore- 

(1)  President,  &e.  v.  Chamberlin,  15  Mass.  ,  (2)  Hubbard  v.  Cummings,  1  Greenl.  11  f 
220;    Robbins   v.    Eaton,    10    N.    H.    561  ;  i  ace.  10  N.  H.  561. 

Ricliardson   v.  Borigbt,   9  Verm.   368.     See  j      (3)  Jackson  v.  Marsh,  5  Wend.  44  ;  Poynt- 
Hillyer  v.   Bennett,    3   Edw.   222;    Story  v.  j  nell  v.  Spencer,  6  Barr,  254. 
Jobn.son,  2  Y.&  Coll.  586;  Loomer  i'.  Wheel-        (4)  Sehcnck  v.   Ellingwood,  3   Edw.   175; 
Wright,  3  Sandf.  Ch.  135  ;   Barnard  v.  Eaton,  \  Bailey  v.  Lincoln,  &c.,  12  Miss.  174. 
2  Cusb.  294.  '      (5)  Palmer  v.  Mead,  7  Couu.  149. 

(a)  Mortgage,  in  consideration  of  land  purchased  by  the  mortgagor,  the  title  to  a  part  of 
which  fails,' but  without  fraud  on  the  part  of  the  grantor.  The  mortgagor  having  entered, 
and  the  conveyance  containing  covenants  of  warranty  ;  held,  the  facts  furnished  no  defence 
to  a  bill  for  foreclosure.  Edwards  v.  Bodine,  26  Wend.  109;  Withers  v.  Morrell,  3  Edw. 
560  ;  Bumpus  v.  Plainer,  1  John.  Cha.  213  ;  Davison  v.  De  Freest,  2  Sandf  Cha.  456 ;  Vau 
Waggoner  v.  M'Ewen,  1  Green  Cha.  412  ;  Jaques  v.  Elsler,  3,  462  ;  Natchez  v.  Minor,  9  S. 
&  m"".  544;  Banks  v.  Walker,  2  Sandf.  Ch.  344;  Johnson  v.  Gene,  2  John.  Cha.  546;  Brad- 
ford v.  Potts,  9  Barr,  37.     But  see  Van  Riper  v.  Williams,  1  Green  Cli.  407. 

It  has  been  held,  that  want  of  consideration  lor  the  note  secured  by  a  mortgage,  is  a 
good  defence  to  a  suit  for  foreclosure,  brouglit  by  the  mortgagee's  administrator,  even  though 
the  mortgage  was  given  to  defraud  creditors.  So,  where  the  consideration  is  less  than  the 
amount  ot  the  mortgage,  the  decree  shall  be  rendered  only  lor  the  real  amount  of  such  con- 
sideration. And  the  fact  may  be  proved  by  admissions  of  the  mortgagee.  Wease  v.  Pierce, 
24  Pick.  141 ;  Abbe  v.  Newton,  19  Conn.  20  ;  Mackey  v.  Browntield,  13  S.  &  R.  239  ;  Rood 
V.  Winslow,  1  Dougl.  (Mich.)  68.     See  Gilleland  v.  Failing,  5  Denio,  308. 

Fraud  upon  a  mortgagor  avoids  the  mortgage,  and  a  bill  in  equity  lies  to  set  aside  a  fraud- 
ulent mortgage,  though  the  plaintiflf  is  in  possession,  and  might  maintain  it  against  the 
mortgagee  at  law.  But  the  fraud  must  be  committed  by  the  mortgagee  or  his  agents,  or 
with^'his  knowledge  at  the  lime.  Marston  v.  Brackett,  9  N.  H.  337 ;  Brings  v.  French,  1 
Sumn.  505;  Wooden  v.  Haviland,  18  Conn.  101;  Burns  v.  Hobbs,  29  Maine,  273;  Aikin 
V.  Morri)^,  2  Barb.  Ch.  140.  As  to  mortgages  obtained  by  threats  or  duress,  see  James  v. 
Roberts,  18  Ohio,  648 ;  N.  J.  Rev.  Sts.  324. 


CHAP.  XXXVI.]  VOID  OR  V01D.\I3LE.  469 

closure  need  not  be  brouglit  in  the  county  where  the  hind  lies.  In  such 
bill,  it  is  sutrieient  to  aver,  that  the  defendant  executed  a  deed  on  con- 
f  dition  ;  and  of  course  any  circumstances,  showing:;  the  instrument  to  be 
no  (/eec/— such  as  forgery,  want  of  witne.«.ses,  duress,  fraud,  coverture, 
&c. — may  be  shown  in  defence;  but  not  circum.stances  merely  impair- 
ing its  ejj'td.     (Two  justices  dissented.)(r/) 

16.  Where  one  mortgages  land,  to  defeat  the  doweri)!  his  wife,  and 
without  consideration,  the  mortgage  is  void  as  to  the  widow  and  as  to 
his  creditors,  but  valid  against  himself  and  his  administrator.  A  court 
of  chancery,  in  such  case,  will  enjoin  the  mortgagee  from  proceeding  to  a 
judgment  "and  sale  of  the  whole  mortgaged  premises,  but  will  suffer 
binfto  sell,  subject  to  the  widow's  dower.  And,  in  Penn.sylvania, 
where  a  sale  on  mortgage  defeats  the  right  of  dower,  the  court,  u[)Ou  a 
scire Juciushy  the  mortgagee  against  the  administrator  to  forcclo.se,  will 
let  in  the  widow  to  defend;  and,  if  there  is  a  real  debt,  there  shall  be  a 
verdict  and  judgment,  giving  to  the  mortgagee  a  lien  on  the  whole  in- 
terest as  to  the  real  debt,  and  for  the  whole  amount  subject  to  the  wi- 
dow's thirds;  or,  if  the  mortgage  was  fraudulently  given,  without  con- 
sideration, and  for  the  purpose  of  defeating  the  wife,  a  verdict  and  judg- 
ment for  the  plaintiff,  subject  to  the  widow's  dower.  But  the  same  prin- 
ciple does  not  apply  to  the  provision  made  for  the  widow  in  that  State 
by  the  intestate  acts,  in  lieu  of  dower.  This  is  a  contingent  right,  with 
none  of  the  common  law  privileges  of  dower,  and  subject  to  be  defeated 
by  the  husband's  acts.  Therefore,  in  the  case  supposed,  the  mortgage 
cannot  be  wholly  avoided,  merely  upon  the  ground  that  the  widow 
migld,  \\\  case  the  intestate  died  without  kindred,  have  been  entitled  to 
the  whole  estate. (1) 

17.  Upon  a  bill  to  redeem,  brought  by  a  subsequent,  against  a  prior 
mortgagee,  the  latter  cannot  defend,  upon  the  ground  that  the  second 
mortgage  is  fraudulent  as  against  creditors  ;-but,  as  showing  the  inten- 
tion of  certain  acts,  and  in  connection  with  a  want  of  delivery  of  the 
deed,  the  evidence  is  admissible.(2)(6) 

(1)  Killinger  v.  Reidenliauer.  6  Ser.  &  R.  i  Howard  v.  Howard,  3  Met.  543  ;  Sprague 
531.  V.  Graham,  29  Maine,  160. 

(2)  Powers  v.  Russell,   13  Pick.  69.     See  1 


(a)  In  New  Hampshire,  it  is  held,  that  a  bill  in  equity  lies  to  set  aside  a  fraudulent  mort- 
gage, thouph  the  plaiiilifT  is  in  possession,  and  might  make  a  defence  at  law  to  a  suit  for  the 
land.     Maraton  v.  Bracketl,  9  N.  H.  336. 

(/')  A  promise  by  a  niortnapeo  to  creditors  of  the  mortgairor,  to  surrender  his  title,  if  they 
will  take  another  mortgage  from  the  mortt^arjor,  and  give  him  time  of  payment,  is;))ima/u- 
cie  evidence  that  the  first  mortgage  was  not  bonafide.     Parker  v.  Barker,  2  Met.  423. 

A  cont'cyarice  from  A  to  B  is  sufficient  consideration  for  a  raortp;age  of  the  land  from  B  to 
C ;  and  the  payment  by  U  of  debts  due  to  A,  and  of  otiier  sums,  at  the  request  of  one  having  an 
interest  in  ihe  land,  is  a  pood  consideration  on  the  part  of  0  to  sustain  the  mortgage  to  tlje 
extent  of  such  payments,  in  the  absence  of  fraud.  And  though  the  consideration  named  in 
the  mortgage  much  exceeds  the  sum  paid,  this  is  only  evidence  of  fraud,  and  may  be  rebut- 
ted:   lb. 

A  mortgage  to  secure  another's  debt,  is  uot  pf^r  se  fraudulent,  for  want  of  consideration. 
Marden  v.  Babcock,  2  Met.  99.  Where  a  mortgage  was  given,  on  the  eve  of  bankruptcy, 
for  a  very  old  debt,  the  circumstances  were  deemed  so  suspicious,  tiiat  the  court  would  not 
interfere  for  a  sale,  upon  the  mortgagee's  petition.  Dewdney,  2  Mont.  &,  Ayr.  72.  See  Wil- 
liams V.  Kelsey,  6  Geo.  3G5  ;  Prior  v.  White,  12  Illin.  261;  Kennaird  v.  Adams,  11  B. 
Mon.  102;   Robinson  v.  Collier,  11  B.  Mon.  332. 


470  MORTGAGE,  WHEN  YOID  OR  YOIDARLE.      [CHAP.  XXXVI 

18.  x\nother  species  of  fraud,  which  will  avoid  a  mortgage,  as  against 
third  persons,  is  a  misrepresentation  or  concealment,  on  the  part  ot  the 
mortgagee,  with  respect  to  his  incumbrance  upon  the  land,  whereby  • 
other  parties  are  induced  to  purchase  or  advance  money  upon  it,  sup- 
posing the  title  to  be  clear.  This  kind  of  fraud  is  chiefly  cognizable  in 
equity,  though  even  courts  of  law  will  often  take  notice  of  it.  In  many 
cases,  equity  and  law  have  concurrent  jurisdiction.  The  principle  of 
equity  is,  that  whei-e  one  seeks  by  misrepresentation  or  even  improper 
concealment  of  facts,  in  the  course  of  a  transaction,  to  mislead  the  judg- 
ment of  another  to  his  prejudice,  the  court  will  generally  interfere. 
Mere  concealment,  or  looking  on,  has  the  same  effect  as  using  express 
words  of  inducement.  But,  in  general,  it  must  appear,  that  the  acts 
would  not  have  been  done,  and  that  the  party  must  have  conceived 
they  would  not  have  been  done,  except  upon  such  encouragement ; 
though,  in  some  cases,  even  the  ignorance  of  the  party  misleading  has 
been  held  to  make  no  difference.  In  a  case  of  this  kind.  Chancery 
will  not  only  refuse  its  aid  to  enforce  the  mortgage,  but,  upon  a  bill  by 
the  party  injured,  to  quiet  his  title,  will  decree  a  perpetual  injunction 
against  enforcing  the  mortgage,  declare  it  void,  or  order  a  release  or 
reconveyance.(l)(a) 

19.  A,  having  a  mortgage  of  a  leasehold  estate,  the  mortgagor,  B, 
borrowed  the  original  lease  of  him,  w^th  the  intention  of  obtaining 
another  loan  upon  the  land.  Held,  if  A  was  privy  to  B's  intention  of 
taking  up  more  mone}^,  A's  mortgage  should  be  postponed. (2) 

20.  The  purchaser  of  mortgaged  land,  who  had  no  notice  of  the 
mortgage,  brings  a  bill  in  equity  against  the  mortgagee,  charging  that 
the  mortgagee  frail dulenily  stood  by,  and  witnessed  the  making  of  val- 
\:uible  improvements  by  the  purchaser,  and  did  not  disclose  his  lien,  or 

(1)  Jeremy  on  Eq.  Juris.  385,  7,  8  ;  1  Story  I  Crancb,  368  ;  2  John.  R.  573  ;  Hobbs  v.  Nor- 


on  Eq.  375,  377,  et  seq.  See  Briggs 
French,  1  Sumn.  504 ;  Bettes  v.  Dana,  2  lb. 
383;  Foster  v.  Briggs,  3  Mass.  313  ;  Barnard 
V.  Pope,  14,  437  ;  Spear  v.  Hubbard,  4  Pick. 
143  ;  Stone  v.  Lincoln,  Middlesex,  Oct.  T., 
1835  ;  Evans  v.  Bieknell,  6  Ves.  182  ;  Storrs 
V.  Barker,  6  John.  Cha.  166 ;  Wendell  v.  Van 
Rensellacr,  1    lb.  344 ;    Lee  v.    Munroe,    7 


ton,  1  Vern.  136;  2  lb.  725;  Dewey  t;.  Field, 
4  Met.  381;  Whitlakerv.  Williiiros,  20  Conn. 
98 ;  Dyer  v.  Cady,  lb.  563 ;  Pennell  v. 
Hinman,  7  Barb.  644;  Lamb  v.  Goodwin.  10 
Ired.  320 ;  Grace  v.  Mercer,  10  B.  Mon.  157  ; 
Brace  v.  Barclay,  lb.  261 ;  Martin  v.  Angell, 
7  Barb.  407. 

(2)  Peter  v.  Russell,  2  Verm.  726. 


(a)  Equity  will  relieve  against  a  fraud  of  this  nature,  notwithstanding  the  constructive  no- 
tice arising  from  registrati(m  of  the  prior  incumbrance.  Napier  v.  Elam,  6  Yerg.  108.  The 
same  principle  renders  void  an  attachment  of  land,  as  against  a  subsequent  incumbrancer, 
who  lias  discharged  a  prior  security  by  the  advice  of  the  attaching  creditor,  and  takes  a  new 
mortgage  after  the  attachment. .  Bnswell  v.  Davis,  10  N.  H.  413.  The  principle  of  estoppel, 
arising  from  notice,  does  not  apply  to  a  feme  covert,  whose  lands  her  husband  undertakes 
to  convey.  Rangeley  v.  Spring,  8  Shepl.  130.  See  Pickard  v.  Seans,  6  Ad.  &  Ell.  469  ; 
Gregg  V.  Wells,  io  lb.  90.  Nor  does  it  preclude  one  from  asserting  a  title  to  land,  who  lias 
merely  aided  in  effecting  a  valuation  and  division  of  it.  Wade  v.  Green,  3  Humph.  547. 
See  further  Jones  v.  Smith,  1  Hare,  43  ;  Meux  v.  Bell,  lb.  73  ;  Felch  v.  Hooper,  2  Appl. 
159.  If  a  mortgagee  consents  to  the  sale  of  the  premises  under  an  administration  suit,  he 
may  still  claim  priority,  in  the  distribution  of  the  proceeds.  Hepworth  v.  Heslop,  3  Hare, 
485.  See  Buchannon  v.  Upshaw,  1  How.  56.  A  and  B,  tenants  in  common,  conveyed  to 
C,  with  warranty,  A  at  the  time  holding  a  mortgage  on  B's  share.  Held,  he  was  estopped 
to  cl.iim  under  the  mortgage.  Durham  v.  Alden,  2  Apple.  228.  But  where  a  mortgagee 
knew  of  a  purchase  of  llie  land,  stood  by  and  saw  improvements,  but  the  mortgage  was  on 
record,  and  it  did  not  appear  that  he  knew  the  purchaser  was  ignorant  of  it ;  held,  he  was 
not  estopped.     Marston  v.  Brackett,  9  (N.  H.)  336. 


CHAP.  XXXVII.]  MORTGAGE— REMEDIKS  OF,  ETC.  471 

intimate  that  lie  had  any  interest  in  the  property.     Held,  the  charge  of 
fraud  required  an  answer,  and  a  deniurrer  to  the  bill  was  overruled. (1) 

21.  A  held  a  mortgage  upon  certain  land.  D,  ])roi)osing  to  take 
another  mortgage,  consulted  with  A,  who  informed  hirn  that  his  (A's) 
n)ortgage  was  satisfied,  and  that  B  might  safely  take  a  mortgage,  lleld, 
utilher  A  nor  his  assignee,  with  notice,  could  set  up  a  prior  mortgage 
against  11(2) 

22.  A  mortgagee  jiromised  by  a  writing  not  under  seal  to  extend 
the  time  of  payment;  and  a  third  person  in  consequence  bought  the 
estate  from  the  mortgagor.  Held,  the  niorlgagee  was  bound  by  his 
pronjise.(3) 

23.  An  attorney  at  law,  holding  a  mortgage  upon  land,  drew  a  con- 
veyance of  part  of  it  to  A,  who  had  no  notice  of  the  mortgage,  the 
attorney  knowing  that  A  paid  a  full  price  for  the  land.  Held,  neither 
the  mortgagee  nor  his  assignee  could  set  up  the  mortgage  against 
A,(4) 


CHAPTER  XXXVIT. 


MORTGAGE— REMEDIES  OF  MORTGAGEE  AND  MORTGAGOR  AT  LAW. 


1.  Distinction  between  a  mortgage  and  trust 

a.s  to  remedy. 

2.  Action  at  law  by  mortjragor,  after  pay- 

ment. 

4.  Action  at  law  by  mortgagee,  after  pay- 

ment. 

5.  Concurrent  remedies. 

6.  Form  of  jud).'nient  for  mortgagee. 

8.  Possession    under  a  judgment,  no   pay- 
ment 


9.  Title  of  mortgagee  under  a  third  person, 
no  payment. 
11.  No  action  at  law  by  mortgagee  in  New 
York  and  South  Ciirolina. 

13.  Tender  in  court  by  mortgagor. 

14.  Suit  by  execution  purcliaser. 

15.  Assumpsit  b}-  mortgagor. 

16.  Remedy  by  scire  fucias,  &c. 
21.  Commitment  of  mortgagor. 


1.  It  has  already  been  remarked  (ch.  31,  sec.  1)  that  a  mortgagee 
is  otten  called  a  trustee  for  the  mortgagor;  that  in  some  respects  he  is 
such,  while,  in  others,  the  relation  which  he  sustains  is  very  different 
from  that  of  a  trust.  One  striking  point  of  difference  may  be  properly 
noticed  here.  A  mortgagee  may  enforce  his  right  by  adverse  suit,  in 
invitum^  against  the  mortgagor — which  can  never  take  place  between 
trustee  and  ce5/«/' 2»<e  trmt.  They  have  always  an  identity  and  unity 
of  interest,  and  are  never  opposed  in  contest  to  each  other.  In  general, 
a  trustee  is  not  allowed  to  deprive  his  cestdi  que  trust  of  the  possession  ; 
but  a  court  of  equity  never  interferes  to  prevent  the  mortgagee  from 
assuming  po.ssession,  because  the  mortgagor  and  mortgagee  do  not,  in 
this  in.stanee,  stand  in  the  relation  of  trustee  and  cestui.  The  mortgagee, 
when  he  takes  the  possession,  is  not  acting  as  a  trustee  for  the  mort- 
gagor, but  independently  and  adversely,  for  his  own  use  and  benefit. 
A  trustee  is  stopped  in  equity  from  dispossessing  his  ce'itui,  because 


(1)  Cater  v.  Longworth,  4  Ohio,  385. 

(2)  Losselle  V.  Barnett   I  Black.  153. 

(3)  Hoffman  v.  Lee,  3  Watts,  352. 


(4)  L'Amoureu.x  v.  Van  Denburgh,  7  Paige, 
316. 


472 


MORTGAGE— REMEDIES  OF 


[CHAP.  XXXVIL 


such  dispossession  would  be  a  breacli  of  trust.  A  mortgagee  cannot  be 
stopped,  because  in  him  it  is  no  breach  of  trust,  but  in  strict  conformity 
to  his  contract,  which  would  be  directly  violated  by  any  impediment 
thrown  in  the  way  of  the  exercise  of  his  right.  So  the  mortgagee  is 
not  prevented  but  assisted  in  equity,  when  he  proceeds,  not  only  to 
obtain  possession,  but  absolute  title  by  foreclosure.(l) 

2.  Some  remarks  have  already  been  made  (ch.  So,  sec.  6,  etseq.)  upon 
the  point,  whether  payment  of  the  mortgage  debt,  after  condition 
broken,  ipso  facto,  revests  the  estate  in  the  mortgagor.(a)  With  this 
question  is  of  course  connected  the  further  inquiry,  what  is  the  proper 
remedy  for  a  mortgagor,  after  such  payment,  to  regain  possession  of 
the  land.  If,  by  payment,  the  legal  estate  is  revested  in  him,  he  is  of 
course  entitled  to  maintain  an  action  at  law  upon  his  legal  title  ;  but  if 
otherwise,  bis  only  remedy  is  a  bill  in  equity. 

8.  In  Massachusetts,  it  was  early  held,  that  the  only  remedy  of  the 
mortgagor  in  the  case  supposed,  is  a  bill  in  equity.  And  this  doctrine 
has  been  adhered  to  in  subsequent  cases.  It  is  placed  upon  the  grounds, 
that  the  statute  law  provides  for  the  discharge  of  a  mortgage,  alter  pay- 
ment, upon  the  record,  thereby  implying  that  the  legal  estate  remains 
in  the  mortgagee  ;  and  chiefly,  that  the  bill  in  equity  is  an  adequate 
and  convenient  remedy,  and  well  adapted  to  the  doing  of  impartial 
justice  to  all  parties ;  on  the  one  hand  moderating  the  rigor  of  the 
common  law  for  the  benefit  of  the  mortgagor,  and  on  the  other  com- 
pelling him  to  do  justice  to  the  mortgagee.  It  is  as  beneficial  to  the 
mortgagor  as  a  suit  at  law,  and  may  sometimes  be  more  so;  for,  if  the 
evidence  of  payment  be  doubtful,  the  mortgagee  may  be  compelled  to 
answer  under  oath  to  the  fact.  It  is  certainly  more  beneficial  to  the 
mortgagee.  If  the  mortgagor  brought  ejectment,  the  mortgagee  could 
obtain  no  allowance  for  repairs  ;  such  allowance  depending  either  upon 
the  statute,  or  the  rules  of  equity.  It  is  unknown  to  the  common  law, 
which  considers  the  mortgagee  as  absolute  owner.(2) 

4.  In  the  case  from  which  these  remarks  are  taken,  the  court  pro- 
ceeded to  notice  the  objection,  that,  upon  this  principle,  the  mortgagee, 
after  payment,  might  recover  the  land  from  the  mortgagor,  thereby 
working  manifest  injustice;  and  the  fact,  that  he  might  so  recover  it, 
seemed  to  be  admitted.  Bat  in  a  later  case,  it  is  said,  that  this  admission 
was  inadvertently  made;  and  distinctly  decided,  that  if  the  mortgagor, 
after  condition  broken,  have  paid  the  debt,  the  mortgagee  cannot  re- 
cover possession  of  the  land,  because  the  conditional  judgment,  provided 
by  statute,  which  authorizes  a  writ  of  possession,  unless  the  defendant, 
wUhin  a  certain  time,  -pay  the  debt,  ko,.,  cannot,  in  such  case,  consistently 
be  rendered.(3) 

5.  In  New  Jersey,  it  is  said,  a  bond  and  a  mortgage  given  to  secure  it, 
are  to  be  considered,  for  some  purposes,  as  separate  obligations  for  the 
same  debt.     The  creditor  in  enforcing  payment  may  consider  them  as 


(1)  2  Story  on  Eq.  278.  n.  3;  Cholmon- 
deley  v.  Cliaton,  2  Jac  &  Walk.  182  to  189, 
&c. 

(2)  Hill  V.  Payson,   3  Mass.  560 ;  Parsons 


V.  Welles,  17  Mass.  419;  Sherman  v.  Abbot, 
18  Pick,  451. 

(3)  Wade  v.  Howard,  11  Pick.  297. 


(a)  See  Breckenridge  t.  Ormsby,  1  Mar.  53 ;  Paxon  v.  Paul,  3  H.  &  McHen.  399,  that 
it  does,  in  Kentucky  and  Maryland;  and  Phelps  v  Sage,  2  Day,  151,  contra,  in  Connecticut. 


CHAP.  XXXVII.]      MORTGAGEE  AND  MORTGAGOR  AT  LKVT.  473 

distinct,  lie  may  procoeil  sin;.^!}-  upon  the  obligulioii ;  or  he  may  pro- 
ceed singly  upon'  the  mortgage,  either  by  ejectment  to  recover  po.s.ses- 
sion,  or  by  bill  in  Chancery  to  foreclose;  or  he  may  proceed  upon  both 
securities  at  the  same  time.(a)  If  the  mortgagee  proceeds  by  ejectment, 
he  will  recover  possession  of  the  land,  and  retain  it  only  till  the  debt 
is  paid.  lie  gains  no  title,  but  is  a  trustee  f«jr  the  mortgagor,  being  ac- 
countable for  the  rents  and  profits.  If  he  proceed  simpl^'tr;  sue  on  his 
bond,  the  execution  may  be  levied  indiscriminately  on  all  the  defend- 
ant's property,  whether  included  in  the  mortgage  or  not.  If  the  mort- 
gaged premises  are  sold,  the  estate  conveyed  by  the  sheriff  to  the  pur- 
chaser, is  in  no  manner  allected  by  the  circumstance  that  a  mortgage 
had  been  previously  given.  The  mortgagee  may  be  considered  as  a 
party  to  the  proceedings,  and  it  would  be  questionable,  at  least,  whether, 
having  treated  the  property  as  the  estate  of  the  mortgagor,  he  sht)uld 
not  be  estopped  from  ever  after  setting  up  a  claim  under  the  mortgage. 
This  is  the  general  understanding  of  the  country  ;  the  i)urcha.ser  bids 
as  if  there  were  no  mortgage;  all  parties  are  considered  as  joining  in 
the  sale  ;  and,  in  case  of  any  deficiency,  the  estate  is  considered  as  dis- 
charged of  the  claim.(l) 

0.  A  statute  in  Massachusetts  provides,  that,  in  suits  upon  mort^^ages 
after  condition  broken,  the  court  shall  render  judgment  for  the  plaintiff, 
to  recover  so  much  as  is  due  according  to  equity  and  good  conscience. 

7.  A  and  B,  tenants  in  common,  mortgaged  to  C,  to  secure  a  joint 
and  several  bond.  Afterwards,  A  mortgaged  an  undivided  half  of  the 
farm  to  D.  D  assigned  the  latter  mortgage  to  C,  who  took  possession 
of  the  land  thereupon  for  condition  broken.  C  then  brings  a  writ  of 
entry  against  B,  for  an  undivided  half  of  the  laud,  upon  the  first  mort- 
gage. Held,  if  the  suit  had  been  brought  for  the  whole  land  against 
both  A  and  B,  B  might  have  redeemed,  by  paying  the  whole  debt,  and 

(1)  Harrison  v.  Eldridge,  2  Halst.  40S-9. 

(a)  This  is  undoubtedly  tl)e  general  rule.  So  an  entry  fur  condition  broken,  tiiough  the 
land  be  worth  more  than  the  nolo,  will  be  no  bar  to  a  suit  upon  tiie  note.  Portland,  &c.  v. 
Fox,  1  Appl.  99.  In  Vermont,  a  suit  to  foreclose  tlio  mortgage  is  regarded  as  a  suit  fur  the 
money  duo  thereupon,  and  a  tender  is  valid  as  in  other  cases.  Powers  v.  Powers,  11 
Verm.  2G2.  In  Maryland,  the  mortgagee  cannot  sue  on  tiie  bond  and  obtain  a  foreclosure 
at  the  .same  time.  Andrews  v.  Scotton,  2  Bland,  6G5.  In  Kentucky,  the  mortgaireo  may 
elect  between  three  remedies ;  taking  pos.session  and  receiving  the  profits;  a  suit  at  law  ; 
and  a  bill  for  foreclosure  and  sale.  Caufman  v.  Sayre,  2  B.  Monr.  205.  In  Indian;!,  one 
holding  a  bond,  secured  by  mortgage,  after  proceeding  upon  tiie  latter,  cannot  resort  to  any 
Other  action.  But  he  may,  in  llie  first  instance,  commence  a  suit  on  the  bond,  sell  liie  land 
mortgaged  upon  execution,  and  thus  abandon  his  right  under  the  mortgage.  Youse  v. 
M'Creury,  2  Blackf.  245.  Tiie  purch  iser,  in  sueii  case,  will  take  a  clear  title.  lb.  Or,  in 
a  suit  upon  the  bond,  the  mortgagee  may  resort  to  any  other  property  of  tlie  mortgagor, 
and  still  retain  his  mortgage  lien.  Markle  v.  Rapp,  2  Blackf.  2G8  &  n.  Upon  a  moriirage 
given  as  security  for  a  note,  a  decree  of  foreclosure  and  sale  was  rendered,  and  a  writ  of 
error  brought  by  the  defendant  to  reverse  such  decree.  Pending  this  writ,  a  suit  was 
brought  on  the  note.  Held,  these  facts  were  no  defence.  Brown  v.  'Wernwag,  4,  1  ;  (aca 
Russell  V.  Ilamiltou,  2  Scam.  57.)  So,  in  Illinois  and  Alabama,  the  mortgagee  may  bring 
an  action  of  ejectment,  a  suit  to  foreclose,  and  a  suit  on  the  bond,  all  at  the  same  time. 
Delahay  v.  Clement,  3  Scam.  203;  Doe  v.  M'Loskey,  1  Alab.  (N.  S.)  708.  In  New  Hamp- 
Bhire,  the  mortgagee,  pending  an  action  at  law  upon  the  mortgage,  may  bring  a  bill  ia 
equity  against  the  .same  defendant,  as  claiming  under  a  fraudulent  title.  Tappan  v.  Evans, 
11  N.  H.  311  ;  ace.  Burnell  v.  Martin,  Doug.  417;  Hale  v.  Rider,  5  Cush.  231  ;  Hughes 
V.  Edwards,  9  Wheat.  489  ;  Willis  v.  Levett,  1  De  (Jex  &.  Sm.  392;  Coppcrthwait  v.  Hum- 
mer, 3  Uarr.  258;  Atl'y,  ic.  v.  Wiustauley,  5  Bligh,  144;  Brainu  v.  Stewart,  1  Sandf. 
Cba.  87. 


474  MORTGAGE— REMEDIES  OF  [CHAP.  XXXVII. 

would  then  have  stood,  in  equity,  as  assignee  of  the  mortgage,  not  only 
as  against  A  to  compel  contribution,  but  as  against  any  subsequent 
mortgagee — otherwise,  by  means  of  a  second  mortgage  from  A,  B 
niighl  be  deprived  of  all  security  ;  and  that,  instead  of  compelling  B 
to  adopt  this  course,  and  afterwards  bring  an  action  or  bill  against  C, 
claiming  under  the  second  mortgage,  to  enforce  his  rights  under  the 
first,  more  especially  as  0  had  entered  to  foreclose  for  a  debt  volun- 
tarily created  after  the  first  mortgage;  the  court  would  exercise  its 
equitable  powers  in  this  suit,  and  render  judgment  only  for  the  amount 
equitably  due  in  relation  to  the  land,  which  was  one  moiety  of  the  debt, 
a  moiety  of  the  land  having  been  taken  by  C  to  secure  another  debt 
from  A  alone.  Judgment  for  possession,  unless  the  defendant  within 
two  months  pay  half  the  money  due  on  the  bond.  It  was  remarked 
that  such  judgment  would  be  no  bar  to  a  suit  against  B,  upon  the  bond, 
for  the  balance  due,  because  the  facts  upon  which  the  judgment  was 
founded  were  specially  set  forth.  If  A  had  been  a  mere  surety  for  B, 
the  whole  amount  being  equitably  due  from  B,  a  different  rule  would  be 
adopted.(l) 

8.  Entry  and  possession,  under  a  judgment  upon  mortgage,  cannot 
be  construed  a  payment  of  the  mortgage  debt.  The  whole  is  but  a  pro- 
cess to  compel  payment,  and  is  only  equivalent  to  an  entry  to  foreclose, 
without  a  judgment.  To  consider  it  payment,  would  be  to  compel  the 
mortgagee  to  become  a  purchaser,  when  he  might  choose  to  hold  the 
land  as  security.  But,  after  foreclosure,  the  estate  may  be  valued,  and 
he  may  be  deemed  to  have  received  payment  jsro  tant().{2) 

9.  Where  a  second  mortgagee  takes  a  conveyance  of  the  laud,  from 
another  person,  holding  a  first  and  third  mortgage,  after  the  latter  has 
entered  and  foreclosed'the  first  and  third  mortgages  ;  to  a  suit  by  the 
second  mortgagee  upon  his  note,  it  is  no  defence,  that  the  land  and  the 
rents  and  profits  thereof,  are  of  greater  value  than  the  aggregate  of  the 
amounts  secured  by  all  the  mortgages ;  because  the  plaintifi"  has  ac- 
quired an  absolute  title  to  the  land,  wholly  independent  of  his  own 
mortgage.  (8)(a) 

10.  In  Massachusetts,  Maine,  New  IIampshire(5)  and  Khode  Isl- 
and,(4)  in  all  real  actions  upon  mortgage,  after  condition  broken,  the 
judgment  shall  or  may  be  a  conditional  one,  that  if  the  mortgagor,  &c. 


(1)  Sargent  v.  McFarland,  8  Pick.  500. 

(2)  West  V.  Chamberlin,  8  Pick.  336; 
Hedge  v.  Holmes,  10  Pick.  381;  Ewer  v. 
Hobbs,  5  Met.  1.     (See  cli.  38,  sec.  31.) 

(3)  Hedf?e  v.  Holmes,  10  Pick.  380. 


4  ;  N.  H.  L.  63  ;  R.  I.  L.  210  ;  Me.  Rev.  St. 
555  ;  York,  &c.  v.  Cutts,  6  Shepl.  204.  In 
Maine,  unless  the  mortgage  is  set  forth  in  the 
writ,  the  judgtoent  will  be  absolute,  if  the 
defendant  does  not  claim  a  riKht  to  redeem. 


(4)  Mas3  Rev.  St.  634:  1  Smith's  St.  163-  I  Rackleff  w.  Norton,  1  Appl.  274. 

(a)  "Where  husband  and  wife  mortgage  her  land,  and  remain  in  possession  till  breach  of 
condition,  a  suit  to  foreclose  is  properly  brought  against  them  both.  Swan  v.  Wis  wall,  15 
Pick.  126. 

Where  A  and  B,  holding  distinct  claims  against  C,  take  one  mortgage  to  secure  them,  the 
mortgage  is  not  joint,  but  several;  each  may  enforce  his  claim  by  the  appropriate  remedy; 
and  therefore,  upon  the  death  of  A,  B  cannot  maintain  an  action  upon  the  mortgage,  to 
enforce  payment  of  A's  debt.     Burnett  v.  Pratt,  22  Pick.  556. 

(b)  Where  a  mortgage  is  given  to  secure  several  notes,  and  an  action  brought  for  non- 
payment of  one,  and  possession  taken  ;  the  mortgagor  cannot  redeem,  without  paying  such 
other  notes  as  fall  duo  while  he  remains  in  possession,  within  one  year  from  the  time^  they 
are  payable.  The  same  rule  holds,  in  case  of  taking  possession  without  suit.  Demiug  T. 
Comings,  11  N.  H.  474. 


CHAP.  XXXVII.]       MORTGAGER  AND  MORTGAGOR  AT  LAW.  475 

pay  to  tlie  inort;^a^ee,  kc,  the  sum  adjud;^ed  due,  within  two  moDths, 
no  writ  of  possession  shall  issue — otherwise  such  writ  >hall  issue.  In 
Massachusetts,  such  ju(l;4inent  must  be  moved  for  by  one  of  the  par- 
ties ;((/)  and,  in  that  State  and  in  Maine,  cannot  be  claimed  l)y  a  defend- 
ant who  is  not  the  mortjzagor,  and  does  not  claim  under  him.  In  Ver- 
mont,(l)  judirment,  in  such  case,  is  rendered  in  conimon  form,  but  the 
court,  on  anpliealion  of  the  defendant,  stay  e.\ecution  ;  and-^^Filer  that, 
if  he  pay  the  amouHt  due  in  a  time  not  exceeding  one  year,  the  judg- 
jnent  shall  be  vacated.  Payment  is  to  be  made  to  the  clerk,  who  shall 
give  a  certificate  thereof,  to  be  recorded,  and  also  take  a  receipt  from 
the  plaintirt'.    No  redemption  is  allowed  after  a  writ  of  possession. 

11.  In  New  York,  the  action  of  ejectment  cannot  be  brought  upon 
a  mortgage.  Nor  can  a  mortgagee  at  the  same  time  maintain  suits 
upon  his  bond  and  mortgage,  on  the  ground  that  the  mortgaged  pre- 
mises have  been  partially  consumed  by  fire. (2) 

12.  In  South  Uarolina,(3)  mortgagees  are  expressly  prohibited  from 
bringing  any  possessory  action  for  the  land  ;  the  mortgagor  bein* 
deemed  owner  of  the  land,  even  after  condition  broken,  and  the  mort- 
gagee owner  of  the  debt.  Upon  the  recovery  of  judgment  on  the  i)er- 
sonal  security,  the  judges  of  the  court  may  order  a  sale  of  the  land, 
giving,  if  they  see  fit,  a  reasonable  extension  of  time,  not  exceeding 
six  months  ;  and  allowing  a  credit  of  not  more  than  twelve  months. 
This  proceeding  is  to  operate  as  a  perfect  foreclosure.  But,  at  any 
time  before  sale,  the  mortgagor  may  prevent  it,  and  entitle  himself  to 
an  entry  of  satisfaction  on  the  mortgage,  by  paying  the  debt  and  costs. 

13.  In  New  Jerse\',  where  a  mortgagee  brings  a  suit  either  upon  the 
mortgage  or  the  bond  secured  thereby,  if  no  suit  in  equit}-  is  pending 
at  the  time,  and  if  the  defendant  bring  into  court  the  amount  of  debt 
and  costs,  the  court  will  discharge  him  from  the  mortgage,  and  order  a 
reconveyance  of  the  premises,  and  a  delivery  tothe  mortgagor  of  all 
evidences  of  title.(4) 

14.  Where  lands  have  been  sold  on  execution,  and  the  purchaser 
brings  ejectment  against  the  judgment  debtor,  the  defendant  cannot 
set  up  in  defence  an  outstanding  moi-tgage  given  by  himself,  before 
the  judgment  lien  attached  to  the  land. (5) 

15.  In  New  Hampshire,  it  has  been  held,  that  a  mortgagor  cannot 
have  assumpsit  against  the  mortgagee  for  the  profits  of  the  land,  re- 
ceived by  the  latter  between  the  time  of  entry  to  foreclose,  and  the 
time  when  the  land  was  redeemeil.(6) 

16.  In  Pennsylvania,  after  twelve  months  from  the  dav  of  payment 
of  the  debt,  or  performance  of  the  condition,  named  in  the  mortgage, 
a  scire  facins  may  be  issued  against  the  mortgagor,  and,  upon  execu- 
tion issued  thereon,  the  land  may  be  sold  as  upon  other  executions, 
or,  for  want  of  purcha.sers,  delivered  to  the  mortgagee,  not  subject  to 
redemption. (7)     If  the  mortgagee  have  released  a  part  of  the  land,  he 

(1)  1  Verm   L.  84;  Rpv.  St.  215.  i      (4)  1  N.  J.  L.   1G2  ;   Den  v.  Spinning,   1 

(2)  2  N.  Y.  Rev.  St.  312  ;   Kni;Io  v.  Un-  '  Halst.  471. 

derliill.  3  Kdw.  249.     See  Van  Sljke  i;.  Shel-  <      (5)  Lessee,  &c.  v.  Butler,  2  Oliio,  225. 
don,  9  Bnrb.  278.  I      (0)  Robinson  v.  Robinson,  1  N.  H.  16L 

(3)  1  Brev.  Dig.  174-5.  '      (7)  Purd.  Dig.  194;  St.  1842,  66. 


(a)  In  Rhode  Island,  by  the  defendant. 


476 


MORTGAGE— REMEDIES  OF,  ETC. 


[CHAP.  XXXVII. 


may  proceed  against  the  remainder,  but  the  mortgagor  may  plead,  that 
the  sum  claimed  is  greater  than  ought  proportionably  to  be  charged 
upon  the  land.(l)  No  sale  or  delivery  of  the  mortgaged  premises  shall 
give  any  further  term  or  estate  in  the  land,  than  the  land  is  mortgaged 
for.(2)  A  sale  upon  a  mortgage  shall  not  affect  the  prior  lien  of  any- 
other  mortgagee.  (The  latter  provision  is  made  by  an  act  passed  April 
6,  183U.)  It  had  been  previously  held,  that  a  sale  on  execution  dis- 
charged all  liens,  prior  and  subsequent.(8)(o)  <% 

17.  In  Delaware,  a  mortgagee  may  have  a  writ  of  scire  facias,  after 
twelve  months  from  breach  of  condition.  The  land  is  sold,  as  upon 
other  executions.  But  the  sale  passes  only  the  interest  owned  by  the 
mortgagee.(4) 

18.  In  Illinois,  the  same  remedy  by  scire  facias  may  be  had  upon  a 
mortgage.  If  the  debt  is  payable  by  instalments,  the  last  must  be  due. 
The  kind  is  sold,  and  subject  to  the  same  right  of  redemption,  as  upon 
execution. (^5) 

19.  In  Indiana,  the  mortgagee  files  a  bill  according  to  the  course  of  the 
common  law,  upon  which  the  court  may  render  an  equitahk  decree,  and 
may  order  a  sale  of  the  land  at  auction.  The  statute  provides,  that 
the  purchaser  shall  take  the  land  free  from  incumbrances,  and  not  subject 
to  redemption,  and  that,  in  cdl  sales  on  execution,  the  surplus  proceeds 
shall  be  paid  over  to  the  debtor ;  but  it  further  provides,  (p.  245,)  that 
no  sale  of  property  on  the  execution,  by  virtue  of  sec.  25,  shall  create 
any  further  term  or  estate  in  vendees,  mortgagees  or  creditors,  to  whom 
it  is  sold  or  delivered,  than  the  estate  was  mortgaged  for.(6) 

20.  In  Ohio,  for  the  purpose  of  foreclosure,  the  land  is  appraised  as 
for  sale  upon  execution,  and,  if  two-thirds  of  the  valuation  exceed  the 
debt  and  interest,  sold  at  auction,  and  the  surplus  proceeds  paid  over 
to  the  mortgagor;  if  not,  the  absolute  title  is  transferred  to  the  mort- 
gagee, with  no  right  of  redemption.  In  the  latter  case,  he  may  still 
recover  the  balance  of  his  debt.(7) 

21.  In  Missouri,  where  the  debt  exceeds  fifty  dollars,  the  mortgagee 
may  file  a  petition  against  the  mortgagor  and  the  tenant,  to  w'nich  any 
person  interested  may  be  a  party.  Judgment  is  rendered  for  the  debt, 
&c.,  and  an  order  passed  for  the  sale  of  the  property.  If  this  is  insuf- 
ficient, execution  may  issue  against  other  property.  If  payment  is  made 
to  the  officer,  he  gives  a  certificate,  which  is  recorded. (8) 


(1)  Purd.  Dig.  204. 

(2)  lb.  292. 

(3)  lb.  297. 

(4)  Del.  St.  1829,  205-6-'7. 

(5)  Illin.  Rev.  L.  376  ;  St.  1841,  171.  See 
Aldrich  v.  Sharp,  3  Scam.  2G3  ;  Belingall  v. 
Gear,  3  Scam.  575  ;  Marshall  v.  Maury,  1, 
231  ;  State,  &c.  v.  Wilson,  4  Gilm.  57  ;  Dela- 
hay  V.  Clement,  3  Scam.  203  ;  M'Cumber  v. 
Gilman,  13  lUia.  542;  Coa.tQsv.  Woodworth, 


lb.  654. 

(6)  Ind.  Rev.  L.  244.  See  Shaw  v.  Hoadley, 
8  Blackf:  165  ;  Grimes  v.  Doe,  lb.  371  ;  Mor- 
gan V.  Woodward,  1  Smith,  321;  Hough  f. 
Dovle,  8  Blackr.  300. 

(7)  Walk.  303;  1  Ohio  R.  235,  3,  187; 
Heighway  v.  Pendleton,  15,  735;  Frische  i'. 
Kramer,  16,  141. 

(8)  Misso.  St.  409-10.  See  Ayres  v.  Shan- 
non, 5  Mis.  282. 


(a)  The  purchaser  holds  the  land  discharged  from  the  lien  of  the  mortgage,  under  which 
the  sale  occurs.  Pierce  v.  Potter,  7  Watts,  475  ;  Berger  v.  Hiester,  6  Whart.  210.  In  case 
of  ejectment  on  mortgage,  the  plaintiff  acquires  a  mere  2)ossession  of  tlie  land,  and  his  right 
ceases  upon  payment  of  the  debt.  Colwell  v.  Hamilton,  10  Watts,  417.  See  Penns.  Sts- 
1845,  489;   1849,  621,  681. 


CHAP.  XXXVIII] 


MORTGAGE— REMEDIES,  ETC. 


477 


22.  It  has  been  held  ia  En«jlan(l,  that,  after  a  rnortfrajrec  has  proceeded 
to  cornrniiinent  of  the  mortgagor  in  a  suit  upon  the  debt,  he  may  still 
have  a  remedy  upon  the  mortgage.(l)(a) 


ClIArTER  XXX\  111. 

MORTGAGE— REMEDIES— IN    EQUITY— FORECLOSURE  AND  REDEMPTION. 


1-14.  Lapse  of  time. 

2.  tJenerul  princiiile-s  of  .'breclosure. 

6-24.  MMysncliuselUi. 

9-30.   Maine. 

1 1.  New  Hampshire. 

i;i.  Rhode  Island. 

l<j.  Vermont  and  Connecticut. 

17.  New  York. 

19    New  Jersej'. 

20.  Georgia. 

21.  Norlli  Carolina. 


22.  Ohio  and  Tennessee. 

31.  Foreclosure:  whether  payment  of  debt, 

&c. 
40.  Ripht  of  redemption  may  be  revived. 
44.  Mortgage  cancelled  by  mistake. 

46.  Equity  will  not  relieve,  where  there  is  a 

legal  right. 

47.  Fraud. 

48.  Payment  into  court. 

49.  Mortgagor  cannot  redeem  on  payment 

by  a  third  person. 


1.  It  has  been  already  stated,  (ch.  31,  s.  38,)  that  a  mortgagor  may 
be  barred  of  his  right  of  redemption  by  lapse  of  time,  and  undisturbed 
possession  of  the  land  by  the  mortgagee.  In  addition  to  this  general 
limitation,  the  law  has  provided  more  specific  modes  of  barring  or  fore- 
closing an  equity  of  redemption. 

"■'  2.  Chancellor  Kent  says,  a  mortgagor's  right  of  redemption  may  be 
barred  or  f»)reclosed  by  the  mortgagee,  after  giying  due  notice  to  re- 
deem. The  ancient  practice  was,  by  bill  in  Cliancery  to  procure  a  de- 
cree for  strict  foreclosure,  wliich  had  the  cflTcct  of  giving  an   absolute 

(1)  Davis  t'.  Battine,  2  Russ.  &  M.  7C;  ace.  Tappan  v.  Evans,  11  N.  IL  311. 


(a)  It  is  said,  that,  au  a  mortgage  creates  a  contract  concerning  a  debt,  as  well  as  a  con- 
veyance of  an  estats,  the  means  of  coercing  the  debtor  by  a  suit  upon  it  ought  not  to  be 
trammelled  by  the  nice  technical  rules  which  govern  real  actions  in  general.  Penniman  v. 
Hollis,  13  Mass.  430:  Wen rse  v.  Pierce,  21  Pick.  143;  Peck  v.  Hapgood.  10  Met.  173; 
Keilh  v.  Swan,  11  Mass.  216;  Miner  v.  Stevens,  1  Cush.  482;  Blanchard  v.  Kimball,  13 
Met.  300;  (ioodtitle  v.  Bailey,  Cowp.  597;  Smith  v.  Edminster,  13  N.  H.  410;  Amidown 
v.  IVck,  11  Met.  467. 

Upon  this  principle,  it  is  no  defence  to  a  suit  for  foreclosure,  as  it  is  to  other  real  actions, 
that  the  defendant  is  not  tenant  of  the  frcehoW,  or  that  he  is  a  mere  reversioner.     lb. 

But  where,  in  a  writ  of  cniryo  n  a  mortgage,  it  appeared  that  the  mortgagors  wore  blind, 
and  the  defendant,  tiieir  father,  lived  on  the  land  with  them,  cultivated  and  improved  it,  as 
the  .sole  manager  and  eflicient  agent;  held,  he  was  not  a  tenant,  nor  lial.le  lu  the  action. 
Churchill  v,  Loring,  19  Pick.  465.  See,  also.  Wheelwright  v.  Freeman,  12  Met.  154;  Rayn- 
ham  V.  Snow,  lb  157  n. ;  Root  v.  Bancroft,  10  Met.  44;  Bradley  v.  Fuller,  23  Pick.'l  ; 
Lowell  V.  Daniels.  2  Cu.sh.  234. 

In  Maine,  a  mortgagee  may  maintain  a  writ  of  entry  against  the  owner  of  the  equity, 
though,  t)0tli  at  the  imie  of  the  mor'.gag^  and  the  suit,  a  stranger  was  in  possession,  by  title 
paramount  to  both  plainlilV  and  defendant.     Whittier  v.  Dow,  2  Shepl.  298. 

If  an  action  for  foreclosure  of  a  mortgage  is  brought  against  a  tenant  in  pos-session,  rooro 
especially  whore  he  is  the  mortgagor  himself,  such  tenant  cannot  prevent  a  judgment  for 
the  plaiutifl'liy  translerring  the  whole  or  a  part  of  the  land,  but  his  grante"  will  bi-  l)uund  by 
the  judgment,  and  pos.se,«sion  taken  under  it.  Hunt  v.  Hunt,  17  Pick.  118.  See  t>igourney 
V.  Stock  well,  4  Met.  618. 


478  MORTGAGE— REMEDIES  [CHAP.  XXXVIIL 

title  to  the  mortgagee.  This  still  continues  to  be  the  usual  English 
practice ;  though,  in  some  cases,  the  mortgagee  obtains  a  decree  lor  a 
sale  of  the  land,  under  the  direction  of  an  oflicer  of  the  court,  in  "svliich 
case  the  proceeds  are  applied  to  the  discharge  of  incumbrances  accord- 
ing to  priority.(a)     The  latter  practice  is  adopted  in  New  York,  Mary- 

(a)  To  a  hill  lor  foreclosure,  all  incumbrancers  should  be  made  partie.'^,  in  order  to  prevent 
a  multiplicity  of  suits,  eflect  proper  distribution  of  the  proceeds,  and  give  security  and  sta- 
bility to  the  purchaser's  title.  So,  all  persons  interested  in  the  mortjiage  or  the  property 
should  lie  made  parties;  including  the  heir,  or  devisee,  or  a.esignee,  and  personal  represen- 
^tatives  of  the  mortgagor  ;  tenants  for  life  and  remainder-men  ;  for  they  may  all  be  interested 
in  the  right  of  redemption,  or  in  taking  the  accounts.  4  Kent,  184;  Slaughter  v.  Fiiust,  4 
Blackf.  381;  Wilkins  v.  Wilkins,  4  Port,  245;  Hall  v.  Oushman,  14  N.  H.  171;  Champlin 
V.  Foster.  7  B  Mon.  104;  Smack  v.  Duncan.  4  Saudf.  Ch.  621;  Weed  v.  Beebe,  21  Verm. 
495;  Yelverton  v.  Shelden.  2  Sandf  Cha.  481  ;  Williamson  v.  Field,  lb.  533;  Goodrich  v. 
Staples,  2  Cush.  258  ;  Calverley  v.  Phelp.  6  Madd.  232  ;  Miller  v.  M'Galligan,  1  Greene,  527; 
Brindernagle  V.  German,  &c.,  1  Barb.  Ch.  15;  Osbourn  v.  Fallows,  1  Ru.ss.  &.  My.  741; 
Hunter  v.  Macklew,  5  Hare,  238 ;  Sraeaihman  v.  Bray,  8  Eng.  L.  &  Equ.  46 ;  Burgess  v. 
Sturgis,  lb.  271;   Rafferty  v  King,  1  Keen,  618. 

So,  in  genera],  the  mortgagor  must  make  all  persons  interested  in  the  mortgage  parties  to 
his  bill  for  redemption.  In  case  of  tru.'^t,  it  lias  been  a  matter  of  somewhat  conflicting  de- 
cision, whether  the  legal  owner  alone  is  to  be  made  a  party,  or  whether  those  equitaljly  in- 
terested are  to  be  joined.  The  latter  course  is  recommended  as  necessary  or  desirable, 
unless  ihecestiii  que  trusts  are  too  numerous  to  be  made  parties,  or  the  trust  is  a  general  one, 
for  creditors.  William.son  v.  Field,  2  Sandf  Cha.  533  ;  King  v.  M'Vickar,  3,  192  ;  Tylee  v. 
Webb,  6  Beav.  557  ;   Wood  v.  Williams,  4  Madd.  186  ;   Coote,   575,  534,  588,  589. 

So,  it  is  held  in  England,  that  subsequent  judgment  creditors  of  the  mortgagor  must  be 
made  parties  to  a  bill  (or  foreclosure.  Adams  v.  Paynter,  1  Coll.  530.  But  a  difterent  doc- 
trine has  been  adopted  in  tliis  country.  Felder  v.  Murphy,  2  Rich.  Equ.  58  ;  Mims  v.  Mims, 
1  Humph.  425. 

So,  it  is  said,  if  two  estates  are  embraced  in  one  mortgage,  and  the  equities  of  redemption 
devolve  on  different  parties,  the  equitable  owner  of  one  cannot  redeem  without  making  the 
other  owner  a  party.  Coote,  602.  So,  several  mortgagees,  joint  tenants,  must  be  parties 
to  a  foreclosure.  Lowe  v.  Morgan,  1  Bro.  368.  So,  if  the  estates  of  two  persons  are  mort- 
gaged together,  both  must  be  included  in  a  bill  to  foreclose.  Coote,  577.  So,  where  a  bill 
to  foreclose  was  brought  by  one  of  two  mortgagees,  each  having  but  a  certain  sum;  held, 
there  could  be  no  foreclosure  or  redemption,  unless  both  mortgagees  were  belbre  the  court. 
Palmer  v.  Carlisle,  1  Sim.  &  St.  423.  So,  where  a  joint  mortgage  is  made  to  two,  to  secure 
several  debts:  they  may  file  a  joint  bill  for  foreclosure.  Shirkey  v.  Hanna,  3  Blackf.  403. 
But  each  creditor  may  foreclose  alone  ;  nor  can  he  join  the  other  as  defendant.  Thayer  v. 
Campbell,  9  Mis.  280.  Nor  can  parties  to  the  mortgage  note,  who  did  not  join  in  the  mort- 
gage, be  joined  as  defendants.     Wilkerson  v.  Daniel.s,  1  Iowa,  179. 

As  to  tlie  proper  parties  where  a  mortgage  has  been  assigned,  see  Coote,  354,  577  ;  Christie 
V.  Herrick,  1  Barb.  Ch.  254 ;  Hobart  v.  Abbot,  2  P.  Wins.  643;  M'Guffey  v.  Finley,  20  Ohio, 
474;  Borst  v.  Boyd,  3  Sandf.  Ch.  501 ;  WHiitbeck  v.  Edgar,  4  Sandf.  Ch.  427  ;  Piatt  v.  Squire, 
12  Met  494;  Browning  v.  Clymer,  1  Smith,  298;  Cushing  v.  Ayer,  25  Maine,  383;  Lane  v. 
Erskine,  13  llliu.  501  ;^Gray  v.  Schenck,  4  Conist.  460  ;  Shackletord  v.  Stockton,  6  B.  Mon. 
390;  Glidden  v.  Andrews,  10  Ala.  166;  Fri-sche  v.  Kramer,  16  Ohio,  125  ;  Comley  v.  Hen- 
dricks, 8  Blackf  189  ;  Watson  v.  Spence,  20  Wend.  260;  Mann  v.  Cooper,  I  Barb.  Ch.  185; 
Jones  V.  Steinbergh,  lb.  250. 

As  to  the  proper  parties  in  case  of  the  death  of  mortgagee  or  mortgagor,  see  Van  Horn 
V.  Duckworth,  7  Ired.  Equ.  261 ;  Greenwood  v.  Rothwell,  7  Beav.  280;  Lane  v.  Erskine,  13 
Illin.  501;  Shaw  v.  McN'ish,  1  Barb.  Ch.  326;  Mclver  v.  Cherry,  8  Humph.  713;  Guthrie 
V.  Sorrell,  6  Ired.  Equ.  13  ;  .Martin  v.  Harrison,  2  Texas,  456 ;  Smith  v.  Webb,  1  B..rb.  230 : 
Batchelor  v.  Middleton,  6  Hare,  75. 

Wlieiher  the  w  idow  or  wife  of  a  party  to  a  mortgage  is  to  be  made  party  to  a  .suit  by 
mortgagor  or  mortgagee,  see  Mims  v.  Mims,  1  Humph.  425;  Lewis  v.  Smith,  11  Barb.  152; 
Bard  v.  Fort.  3  Barb  I'h.  632;  Carwardine  v.  Wishlade,  6  Eng.  L.  &  Equ.  103;  Denniston, 
V.  Potts,  11  S.  &  M.  36  ;   Wood  v.  Mann,  3  Sumn.  318. 

As  to  the  proper  party  in  case  of  guardianship ,  see  Pardee  v.  Van  Arken,  3  Barb.  534. 
In  case  of  insolvency.  Collins  v.  Shirley,  1  R.  &  My.  638  ;  Singleton  v.  Cox,  4  Hare,  326; 
Kerrick  v.  Saffery,  7  Sim.  317  ;  Steele  v.  Maunder,  1  Coll.  535. 

In  a  liill  for  tbreclosare,  one  claiming  adversely  to  the  mortgagor,  and  by  title  prior  to  the 
mortgage,  cannot  be  made  a  party  defenilant,  for  the  purpose  of  trying  his  title.  Holcomb 
V.  Holcomb,  2  Barb.  20;  Jones  v.  St.  John.  4  Sandt;  Ch.  208;   Lewis  v.  Smith,  11  Baro.  152. 

Wliere  a  second  mortgagee  brings  a  bill  in  equity  for  sale  or  foreclosure  of  the  premises, 
whether  the  first  must  be  a  party;    see  Mims  v.  Mims,   1  Humph.  425  ;  Judson  v.  Emanuel, 


CHAP.  XXXVIII.] 


IN  EQUITY,  ETC. 


479 


land, (a)  Vir^niiia,  tlie  Carolinas,  Teiincs.see,  Kentucky,  Tnrliana,  Miclii- 
gan,(/>)  and  Alabama.(l) 

3.  Ii  i.s  said,  "  if  a  freehold  estate  be  held  by  way  of  niorfgage  for  a 
debt,  it  may  be  laid  down  as  an  invariable  lule,  tliat  (in  order  to  a  sale) 
the  creditor  must  first  obtain  a  decree  for  a  sale  under  a  bill  of  fore- 
closure. There  never  was  an  instance,  where  a  creditor,  holding,  and 
in  jtledge,  was  allowed  to  sell  at  his  own  will  and  pleasu-fer  It  would 
open  a  door  to  the  most  shameful  imposition  and  abuse. "(2)(c) 

4.  Where  the  practice  prevails,  of  foreclosure  without  sale,  its  .seve- 
rity is  mitigated,  by  enlarging  the  time  of  redemption  from  si.x  months 


(I)  4  Kent.  180-1;  Mich.  St.  1839,  222-3; 
Green  v.  Crockett,  2  Dev.  &  B.  Equ.  393  ; 
Maasiiiu  I'.  Dartlott,  8  Purr.  277. 


(2)  Per  Kent.  Clir.  ;  Hart 
John.  Cha.  100. 


Ten  Eyck,  2 


1  Alah.  (N.  S)  598;  Vanderkemp  v.  Shelton,  11  Paig:o,  28;  Holcomb  v.  Holcomb,  2  Barb. 
23;  Shineley  v.  Jones,  6  B.  Mon.  274;  Richards  v.  Cooper,  5  Beav.  304;  Archdea'con  v. 
Bowes,  M'Clei.  153.  It  has  been  held,  that  ho  need  not  be,  wliere  the  second  niorifragee 
sues  the  inortjjagor  and  subsequent  mortgatrees.  Richards  v.  Cooper,  6  Beav.  304.  Wliere 
a  mortgagor  upon  his  marriage  settled  the  land  upon  his  wife  and  i.ssue,  and  became  bank- 
rupt;  held,  his  assignee  need  not  be  a  party  to  a  suit  for  foreclosure.  Steele  v.  Mawder,  1 
Coll.  Cha.  535. 

How  far,  in  a  bill  for  foreclosure,  a  decree  shall  be  delayed,  for  the  purpose  of  adjusting 
the  respective  rights anfl  interests  of  ditierent  parties,  defendants;  see  Renwich  v.  Macomb, 
1  Ilopk  277  ;  N.  Y.  &c.  v.  Cutler,  3  Sandf.  Ch.  176;  Duberlv  v.  Day,  7  Eng.  L.  &  P:qu. 
188  ;   Robinson  v.  Turner,  lb.  138. 

So,  the  grantee  of  an  easement  by  a  conveyance  prior  to  the  mortgage.  Combs  v.  Stewart, 
10  B.  Mon.  4G3. 

{a)  In  this  State,  in  case  of  a  creditor's  bill  for  sale  of  mortsaged  land,  if  the  defendant 
in  hi.s  answer  a.>«ent3  to  a  sale,  the  court  may  decree  an  immediate  sale  for  payment  of  the 
mortgage.  Gibson  v.  M'Cormick,  10  Gill  &  J.  65.  Time  will  be  granted,  only  when  the 
mort-':ig<'o  applies  for  a  .sale.  lb.  If  the  mortgage  is  payalile  by  instalments,  it  m^y  be 
forecluscd  when  the  first  falls  due.  Salmon  v.  Clagett,  3  Bland.  179.  The  sale  of  an  infant's 
mortgagi-d  e.«tate  must  always  be  for  his  benefit.  Williams,,  lb.  194.  In  ca.se  of  a  decree 
for  sale,  t!ie  mortgagor  mu.st  bo  allowed  time  to  pay  the  debt.  Jones  v.  Betsworth,  3  Bland. 
194.  But  see  19'j  n.  See.  al.so,  Worthington  v.  Lee,  2,  603  ;  Lausdale  v.  Gierke,  2,  358; 
Atkinson  v.  Hall,  lb.  372;  Wadrop  v.  Hall,  lb.  666:  Hunter  v.  Gmnt,  lb.  667  ;  Buchanan 
v.  Shannon,  lb. ;  Worthington  v.  Lee,  lb.  G81.  The  mortgairee  must  be  made  a  party, 
unless  his  whole  interest  is  dive.sted.     lb.  682.     See  Md.  L.  ISr,  213,  1261. 

(b)  In  this  State,  where  a  mortgage  is  payable  by  instalments,  and  the  land  consists  of  a 
single  eiirhiy  acre  lot  or  a  farm,  and  a  sale  becomes  necessary  for  any  but  the  last  instalment, 
portions  may  1)0  sold  as  nearly  square,  and  as  near  to  the  north-east  corner,  as  pos^sible. 
Mich.  Si  1339,  227.  A  mortga;re  pavable  by  instalments  is  to  be  treated  like  distinct 
mortgages.  lb.  228.  In  c^me  of  foreclosure,  the  slierifl'  immediately  makes  a  deed  to  the 
purchaser,  which  is  left  with  the  r.-gister  of  decd.s,  and  after  one  year  delivered  to  the 
grantee,  (or  after  two  years,  unless  the  mortgage  was  made  as  security  for  the  price  o(  the 
land  )  in  case  the  mortgagor  does  not  in  tiie  meantime  redeem.  St.  1840,  146.  If  the  laud 
consists  of  distinct  lots,  they  are  separately  sold,  and  only  enough  of  them  to  satisfy  the 
claim.  A  deed  is  made  by  the  oRicer  and  recorded,  and,  unless  the  debtor  redeem  in  two 
ycar.s.  paying  seven  per  cent,  interest,  is  delivered  to  the  purchaser.  St  1844,  38;  Rev.  St. 
500-3.     See  Caswell  v.  Ward,  2  Dougl.  374. 

In  Arkansas,  the  mortgaiiee  files  a  petition,  upon  which  a  sale  is  ordered,  like  that  on 
other  c.veoutions.  If  llie  property  proves  insuirieient,  a  new  execution  issues,  on  which 
other  properly  may  be  taken.  The  ollicer  gives  a  cerlificate,  which  is  acknowledu'ed  and 
recorded.  Before  a  sale  tak.-s  place  the  property  may  bo  redeemed  Ark.  Hev.  St.  580. 
In  Ahil.ama,  in  case  of  sale  by  order  of  Chancery  upon  an  incumbrance,  one  claiming  under 
the  mongagnr,  but  not  a  party,  may  redeem  witliin  five  years.  Clay,  329.  The  same  riiflit 
of  redemption  is  allowed  to  a  mortgagor  as  loan  e.vecution  debtor  ;  provided,  the  defendant 
in  the  p.xecution.  if  in  pos-session  at  iho  time  of  sile,  aliall  deliver  it  without  suit  to  the 
Tendee  An  execution  creditor,  who.se  debt  is  un.«atisfied,  may  redeem,  as  in  other  cases  of 
execution  sale.  One  who  n-doems  is  bound  to  pay  the  occupant  for  his  improvements.  lb. 
503      .S,'e  Ala.  L    1849-50,  68. 

(c)  An  express  power  to  aetl  is  an  exception  to  the  rule. 


480  MORTGAGE— REMEDIES  [CHAP.  XXXTIII, 

to  six  months,  or  for  shorter  periods,  according  to  the  equity  arising 
from  circumstances.(l) 

5.  In  Massachusetts,  the  mortgagee,  after  condition  broken,  may  re- 
cover possession  by  action,  or  may  enter  openly  and  peaceabl}^,  if  not 
opposed  by  the  mortgagor  or  other  person  claiming  the  premises  ;  and 
a  continued  peaceable  possession  for  three  years  will  foreclose  the  mort- 
gage. («) 

6.  In  case  of  entry  without  a  judgment,  a  memorandum  or  certificate 
thereof  is  made  upon  the  deed,  signed  by  the  mortgagor  or  party  claim- 
ing under  him,  and  recorded ;  or  else  a  certificate  of  two  competent 
witnesses  to  prove  the  entry,  is  made  and  sworn  to,  and  recorded  ;  and 
no  entrj^  is  effectual  for  foreclosure,  unless  a  certificate  or  deposition  in 
proof  thereof  is  thus  made  and  i'ecorded.(2) 

7.  In  case  of  entry  before  condition  broken,  the  three  years,  limited 
for  redemption,  will  not  begin  to  run  till  breach  of  condition,  and  writ- 
ten notice  that  the  possession  is  thenceforth  to  be  held  for  condition 
broken  or  for  foreclosure ;  unless  the  mortgagee  make  a  new  entry  or 
commence  an  action.  The  same  certificate  or  deposition,  to  prove  such 
notice  or  new  entry,  shall  be  made  and  recorded,  as  above  provided  in 
case  of  other  entries.(3) 

8.  A  mortgagee,  pending  an  action  upon  the  mortgage,  entered  upon 
the  land  in  puis  for  condition  broken,  and  afterwards  entered  under  a 
judgment  in  the  suit.  Held,  the  latter  entry  was  a  waiver  of  the  former, 
and  the  three  years  for  foreclosure  dated  from  the  latter.(4)(i) 

(1)  4  Kent,  181-2;  Coote,  569;  Jones  v.  I  (4)  Fay  v.  Valentine,  5  Pick.  418.  See 
Cresvvicke,  9  Sim.  304.  I  Cutts  w.  York,  &c.,    6    Shepl.   190;   Smith  «. 

(2)  Mmss.  Rev.  St.  634.  See  Boyd  v.  Shaw,  I  Kelley,  27  Maine,  237  ;  Bellows  v.  Stone,  14 
2  Sliepl.  58.  N.    H.  175;  Demiiig   v.  Comings,    11  N.  H. 

(3j  lb.  635-6.  1474;   Rangely  v.  Spring,  28  Maine,  127.* 

*  Entry  by  an  attorney,  not  duly  authorized,  will  be  sufficient,  if  afterwards  adopted  in 
writing  by  the  mortgagee.     Cutts  v.  York,  Ac.,  6  Shepl.  190. 

It  has  been  held  in  Massachusetts,  before  the  statute  referred  to  in  the  text,  that,  if  the 
mortgagee  enter  before,  and  continue  in  possession  after,  breach  of  condition,  the  three  years 
began  to  run,  upon  the  mortgagor's  receiving  actual  or  implied  notice  of  his  intention  to  hold 
for  tiie  purpose  of  foreclosure.  Erskine  v.  Townsend,  2  Mass.  495  ;  Scott  v.  Mc'Farland,  13, 
309;  Pomeroy  v.  Winship,  12,  514.  See  Taylor  v.  Weld,  5,  109;  Thayer  v.  Smith,  17, 
429.  It  is  not  a  sufficient  entry  for  foreclosure,  that  the  mortgagor  signs  a  paper  containing 
the  words,  "  I  hereby  give  possession."  Pease  v.  Benson,  28  Maine,  336.  But,  where  a 
statute  provides,  that  a  certificate  shall  be  evidence  of  entry  and  possession;  proof  is  not  ad- 
missible against  such  certificate,  that  there  was  no  actual  entry.  Oakham  v.  Rutland,  4 
Cush.  172.  Entry  on  one  of  several  lots,  in  the  same  county  and  town,  for  the  purpose  of 
foreclosure,  is  sufficient  for  all.  Shapley  v.  Rangeley,  1  W.  &  M.  213.  Tiie  mortgagee  need 
not  have  his  deed  with  him,  nor  make  any  express  declaration  of  his  intent,  when  he  enters. 
An  autliority  from  the  mortgagor  to  deliver  possession  may  be  verbal.  It  is  sufficient,  if  the 
mortgagee  goes  to  the  land  at  the  time,  and  afterwards  takes  possession  and  occupie.s,  with 
the  mortgagor's  assent.  Skinner  v.  Brewer,  4  Pick.  468.  See  further,  Wright  v.  Tukey,  3 
Cush.  290;  Colby  v.  Poor,  15  N.  H.  198;  Merriam  v.  Merriam,  Mass.  S.  J.  C.  Oct.  ia50. 
Law  Rep.  July,  52,  p.  169. 

(a)  Entry  afler  breach  of  condition  is  presumed  to  be  for  the  purpose  of  foreclosure.  Hunt 
V.  Stiles,  10  N.  H.  466. 

{h)  Where  a  mortgagee,  having  entered  for  breach  of  condition,  is  placed  under  guardian- 
ship as  a  spendthrift,  the  guardian  may  restore  possession  to  the  mortgagor,  and  thus  pre- 
vent a  foreclosure.     Botham  v.  Mclntier,  19  Pick.  346. 

The  assignee  of  a  mortgage  having  received  rent  from  the  tenant  in  possession,  his  admin- 
istrator, on  his  death,  called  on  the  tenant  to  attorn  or  surrender,  but  lie  denied  the  right  of 
the  administrator,  and  refused  to  do  it.     The  administrator  then  brought  an  action  against 


CHAP.  XXXVIII.]  IN  EQUITY,  ETC.  481 

y.  Ill  Maine,  an  entry  to  foreclose  sliall  be  made  by  process  of"  law, 
by  the  written  consent  of  the  mortgagor,  &c.,  or  by  the  mortgagee's 
taking  open  and  peaceable  possession  before  two  witnes.ses.  Fore- 
closure may  also  be  elfected  by  a  public  notice  in  the  ncwspapei',  or  a 
notice  regularly  served  on  the  mortgagor,  &c. ;  in  each  case  to  be  ro- 
corded.(l)(a) 

10.  Where  a  mortgagee,  in  Maine,  took  possession  of  the  land,  under 
an  execution,  in  presence  of  his  own  agent  and  the  sherili'  only  ;  held, 
they  were  not  the  two  imtaesses  required  by  law. (2) 

11.  In  New  IJampshire,  the  moitgagee  may  hold  for  foreclosure,  by 
a  peaceable  entry  with  or  without  icgal  process,  after  condition  broken; 
])rovided,  in  the  former  case,  he  publish  a  notice  ;  or  by  remaining  in 
possession,  with  noiice  of  his  purpose,  if  he  entered  before  breach  of 
condition.  Tlie  time  of  redemption  is  one  year.  And  this  rule  is  not 
affected  by  a  subsequent  statute,  giving  the  court  full  Chancery  power 
over  mortgages. 

12.  If  the  mortgagee  remain  in  possession,  a  year  after  condition 
broken,  icitJt,  the  mortgagor ;  this  is  a  sufficient  possession  to  foreclose 
the  mortgage.(3) 

13.  In  Ehode  Island,  three  years'  possession  is  sufficient  to  foreclose 
a  mortgage.  Possession  is  to  be  taken,  either  b}^  legal  process,  or  by 
peaceable  and  open  entry  in  presence  of  two  witnesses,  who  shall  give 
a  certificate  of  the  fact.  The  party  giving  possession  shall  acknowledge 
it  to  be  voluntarily  done  before  a  magistrate,  and  both  the  certificate 
and  acknowledgment  shall  be  recorded.  The  court  are  empowered  to 
hear  in  equity  all  bills  of  foreclosure,  brought  after  the  mortgagee  has 
taken  possession,  by  consent  of  parties,  without  legal  process. (4)(i) 

14.  In  this  State,  the  general  doctrine  of  foreclosure  by  lapse  of  time^ 
indejK'ndently  of  statutory  provisions,  has  also  been  recognized.  Thus, 
where  a  mortgagee  had  been  in  visible  possession  of  the  land  for  ten 
years,  nine  of  them  after  condition  broken,  and,  four  years  after  the 
death  of  the  mortgagor,  conveyed  to  one  having  no  actual  notice  of  the 
mortgage,  and  affected  by  it  only  so  far  as  it  varied  constructively  from 
the  ri'gistry  ;  and  the  purchaser  occupied  eighteen  years  and  made 
valuable  improvements  ;  and  the  mortgagor's  estate,  being  insolvent, 
was  ailministered  by  the  mortgagee;  held,  the  right  of  redemption,  as 
against  the  purchaser,  must  be  deemed  to  have  been  abandoned  by  al  1 
parties  interested,  and  a  bill  for  that  purpose,  brought  by  a  devisee  of 
one  of  the  mortgagor's  heirs,  was  dismissed.(5) 

(1)  1  Smith's  St.  161-2  ;  Me.  Rov.  St.  555.  1 1-.    Hadden.    5    N.  11.   30.      See  Gushing  v. 


See   Sis.    1S52,   22G ;    Cu.shing  v.    Ayer,  25 
Maine,  383;  Clinae  v.  Palmer,  25  Maine,  341. 

(2)  Gordon  i'.  Hol.arl,  2  Sumn.  401. 

(3)  N.  II.  St.  1829,  529-30;  Rev.  St  246; 
Gibson  i'.  Bailey,  9  N.  H.  168;  "Wendall  v. 
New  Hampshire,  Ac,  9  N.  11.  404;  Giiman 


Smith,  3  Story  Rep.  55G  ;  Deming  i'.  Com- 
ings, 11  N.  II.  474. 

(4)  R.  I.  L.  210-11.  See  Daniels  i'.  Mowry, 
1  R.  I.  151. 

(6)  Dexter  v.  Arnold,  1  Sumn.  109. 


him  on  the  mortgage,  without  notice  to  the  heirs  or  representatives  of  the  mortgagor,  who 
was  deaii,  recovered  a  conditional  judgment,  sued  out  an  execution,  entered,  and  remained 
in  possession  throe  years.  Held,  the  mortgage  was  foreclosed.  Sheltoa  v.  Atkins,  22 
Pick.  71. 

(a)  A  written  surrender,  not  recorded  within  thirty  days,  is  wholly  inoperative.  South- 
ard V.  Wil.son,  29  Maine,  56. 

(6)  This  statute  is  adopted  by  the  U.  S.  Court.     Dexter  v.  Arnold,  3  Sumn.  152. 

Vol.  I.  31 


482  MORTGAGE— REMEDIES  [CHAP.  XXXVIII. 

15.  But  where  a  part  of  several  parcels  of  land,  mortgaged  by  one 
deed,  have  been  convejed  by  the  mortgagee  to  a  bona  Jide  purchaser, 
against  whom  the  right  of  redemption  is  barred  by  lapse  of  time;  the 
mortgagor  may  still  redeem  such  portions  of  the  land  as  remain  in  the 
mortgagee's  possession. (1) 

\Q.  In  Vermont,  the  mortgagor  is  allowed  by  the  decree  a  definitive 
time,  sometimes  one  and  two  years,  to  redeem,  and  in  default,  the 
equity  of  redemption  is  foreclosed.  In  Connecticut,  the  land  mortgaged, 
upon  foreclosure,  is  never  decreed  to  be  sold.  The  bill  of  foreclosure 
is  not  a  proceeding  in  rem ;  there  is  no  sale,  and  possession  is  not  en- 
forced. The  mortgagor  is  allowed  fifteen  years  to  redeem,  after  entry 
by  the  mortgagee  for  breach  of  condition.  Where,  before  foreclosing, 
a  suit  has  been  brought  on  the  note,  the  costs  of  such  suit  become  part 
of  the  mortgage  debt.  By  a  late  act,  in  case  of  a  suit  upon  a  mortgage 
before  it  is  due,  a  tender  of  the  debt  and  costs  defeats  ihe  action.  So, 
if  a  part  only  is  due,  a  tender  of  such  part  defeats  the  action,  and  stops 
the  interest.(2) 

17.  In  New  York,  upon  a  bill  for  foreclosure  or  satisfaction,  the 
court  may  decree  a  sale  of  the  whole  or  a  part  of  the  land. (a)  When  a 
bill  is  filed  for  satisfaction,  the  court  may  not  only  compel  a  delivery  of 
the  land  to  a  purchaser,  but,  on  the  return  of  the  report  of  sale,  may 
decree  payment  of  any  balance  remaining  due,  and  recoverable  bylaw, 
either  from  the  mortgagor  or  a  surety,  if  the  latter  be  joined  in  the  bill ; 
and  issue  executi(jns,  as  in  other  cases.  Daring  and  after  such  process, 
no  suit  at  law  shall  be  brought  for  the  debt,  unless  authorized  by 
Chancery. (/>)  The  bill  must  set  forth  whether  any  proceedings  have 
been  had  at  law  upon  the  debt;  and  if  judgment  has  been  recovered, 
the  bill  will  be  dismissed,  unless  the  sheriff  has  returned  on  execution, 
that  the  debtor  has  no  property  except  the  mortgaged  |)remises.  Sales 
shall  be  made,  and  deeds  given,  by  a  master,  and  shall  vest  the  same 
title  in  the  purchaser  that  a  Ibreclosure  would  have  vested  in  the  mort- 
gagee, and  shall  be  as  valid  as  if  executed  by  both  mortgagor  and  mort- 
gagee.(c)     The  surplus  proceeds  shall   be  brought  into  court,  for  the 


(1)  1  Sumn.  109. 

(2)  Palmer  r.  Mead  "7  Conn.  152-3;  Smith 
V.  Bailey,  1  Shaw,  163  ;  lb.  267  ;  4  Kent, 
181 ;    Pettibone  v.  Stevens,    15   Conn.    19 ; 


Conn.  St.  1840,  30-1.  See  Preston  v.  Brigga, 
16  Verm.  124;  Conn.  L.  1849,  51,  62;  lb. 
1850,  34;   Conn.  Sts.  1849,  26. 


(a)  II  is  lield  in  Alabama,  that  the  decree  cannot  properlj'  leave  it  discretionary  with  the 
master  to  sell  tlie  wliole  or  a  nart  of  the  land.     Walker  v.  Hallett,  1  A  lab.  (N.  S.)380. 

(h)  Ifa  suit  at  law  has  l)een  commenced  on  tlie  bond,  a  bill  for  foreclosure  may  l)e  brought 
w'itliout  discontinuinji  it ;  but  no  judg-menl  will  be  rendered  or  execution  issued  in  such 
suit,  without  leave  of  Chancery.  If  the  suit  is  again.st  one  not  party  to  tiie  bill,  against 
v?hom  it  is  doubtful  wliether  there  could  be  a  decree  over,  in  case  of  deticiency.  tiiough 
made  a  party  ;  and  if  the  laud  is  insufBeient  security  for  the  whole  debt;  the  court  will 
allow  the  suit  to  proceed  :n  order  to  settle  the  validity  of  a  defence,  but  will  not  issue  exe- 
cution without  leave  of  Chancery.  Suydam  v.  Bartle,  9  Paige,  294.  See  Thomas  v.  Brown, 
lb.  320. 

(c)  A  decree  of  foredosijre  and  consequent  sale,  upon  a  bill  filed  against  the  mortgagor 
alone,  do  not  bind  purchasers  from  him.  Watson  v.  Spenee.  20  Wend.  2G0.  Nor  can  they 
be  ej^-cled  upon  execution.     Fuller  v.  Van  Geesen,  4  Hill,  171. 

A  purchaser  under  a  void  decree,  in  posses.sion  of  land,  is  regarded  as  a  stranger,  and 
cannot  set  up  against  the  owner  of  the  equity  an  outstanding  tiile  in  the  mortgagee,  at 
whose  suit  the  decree  was  obtained.  lb.  The  deed  takes  effect  immediately,  though  the 
maslrr's  report  is  made  afterwards.     Fuller  v.  Van  Gee.sen,  4  Hill,  171. 

If  the  mortgagee  become  the  purchaser,  and  agree  in  writing  to  convey  to  a  third  person, 
no  redemption  will  be  allowed,  tliough  the  deed  liave  not  actually  passed.  Merritt  v.  Lam- 
bert, 7  Paige,  344. 


CHAP.  XXXVIII.]  IN  EQUITY,  ETC. 

use  of  the  defendant  or  other  party  entitled,  and,  if  not  taken  out  in 
three  months,  invested  for  their  benefit.  If  the  bill  is  filed  fur  the  pay- 
ment of  an  instalment  or  of  interest,  it  shall  be  dismissed,  upon  the  de- 
fendant's paving  the  amount  due,  Avitli  eost.s,  bef<jre  the  deeree  for  a 
sale.  If  |)aid  afterwards,  proeeedings  shall  be  stayed,  but  a  decree  of 
foreclosure  and  sale  entered,  to  be  enCurccd  upon  any  suJKfcquc-nt  de- 
fault, on  a  new  petition,  and  b}''  a  further  order.  In  such  case,  the 
court  will  ascertain,  through  a  master,  whether  a  portion  of  the  land 
may  be  sold,  sufficient  to  pay  what  is  due,  and  decree  accordingly.  If 
a  sale  of  the  whole  will  be  most  beneficial,  such  sale  will  be  decreed, 
and  the  whole  debt  paid,  deducting  interest  on  the  portion  not  due,  if 
not  payable  on  interest;  or  the  court  may  order  such  f)ortion  to  be  put 
out  at  interest  for  the  benefit  of  the  parties.(l)(a) 

18.  By  later  statutes,  land  sold  under  mortgage,  or  a  decree  thereon, 
may  be  redeemed  in  one  year.  So  any  distinctly  sold  portion  of  the 
whole.  Ten  per  cent,  interest  shall  be  paid.  A  tender  may  be  made 
either  to  the  officer  or  the  purchaser,  who  shall  give  a  certificate  of  the 
payment;  or,  in  case  of  their  refusal,  absence,  or  disability,  or  if  they 
are  unknown,  to  the  public  treasurer.  ^J'he  certificate  to  be  recorded. 
The  mortgagee  has  possession  after  a  sale,  unless  in  eight  days  the 
mortgagor  gives  security  against  waste,  &c.  Creditors  may  redcfni  in 
succession,  accordmg  to  their  respective  priority,  paying  seven  per  cent, 
interest.  The  mortgagee  need  not  make  a  claimant  under  a  subsequent 
decree  party  to  the  bill.  Provision  is  made  for  foreclosure  by  means  of 
a  public  advertisement.  Within  fifteen  months  after  an  execution  sale, 
the  mortgagor  may  redeem  the  whole  of  the  premises  or  any  part 
separately  sold,  subject  to  redemption  by  any  other  creditor.(2) 

19.  In  New  Jersey,  the  statute  provides,  that  po.-^session  by  the 
mortgagee  twenty  years  after  default  of  payment  shall  bar  the  right 
of  rede'.nption.  Upon  a  bill  for  foreclosure,  the  court  may  order  a 
sale  of  the  whole,  or  a  sufficient  portion  of  the  land,  either  by  a  Master, 
or  by  a  sheriff  upon  Jieri  fucias.  But  the  sale  shall  pass  no  greater 
estate,  than  the  mortgagee  would  have  acquired  by  foreclosure.  Where 
a  mortgagee  sues  either  upon  the  mortgage  or  the  bond,  if  there  is  no 
suit  in  eijuity  pending  at  the  time,  and  tlie  defendant  brings  into  court 
the  amount  of  debt  and  cost;  the  court  will  di.^^charge  him  from  the 
mortgage,  and  order  a  reconveyance  and  a  delivery  to  him  of  all  evi- 
dences of  title.  The  purchaser  takes  no  greater  estate,  than  the  mort- 
gagee would  have  done  by  foreclosure.     If  a  part  of  the  debt  is  not 


(1)  2  N.  Y.  Rev.  St.  191-3.  See  William- 
son I'.  Cliumplin.  8  Paijre,  70;  Sliufflt  v. 
Sliiilelt,  9,  131;  Siil.in  v.  Siickiiey.  9  Verm. 
155;  Harris  v.  Fly,  7.421  ;  M'Carlliy  v.  Gra- 
haiii,  8,  4S0 ;  Van  Hook  V.  'J'lirockiiiorlon. 
lb  33  ;  Veclitew  Brownell,  lb.  212;  ^sorton 
v.  Slone,  lt>.  222;  Bt-ekman  v.  Gibbs,  lb. 
511;  Post  tv  Lnet,  lb  337;  Seaman  v  Hick.s, 
lb  G55;  Torn-y  v.  Bank,  Ac.  9,  149;  Far- 
mers,  ii*.  V.  Millard,    lb.   620;    Uuokman  v. 


Astor,  lb.  517  ;  Manhattan,  &c.  v.  Greenwich, 
toe.,  4  Edw.  Ch.  315;  Burrr.  Stanley.  4  Edw. 
Ch.  27. 

(2)  N.  Y.  L.  1837,  455-G  ;  1838,  261-3; 
1840,  289-90;  1842,  383,  4  09;  1844,  529; 
Sts.  1847,  508.  See  Cameron  v.  Irwin,  5 
Hill,  276;  Wilson  v.  Troup,  2  Cow.  195; 
Arnot  V.  Post,  6  Hill,  Go  ;  Lamerson  v.  Mar- 
vin, 8  Barb  9  ;  Van  Slyke  v.  Slielden,  9,  278. 


(a)  In  Keotueky,  where  a  mortgA(;e  is  payable  by  instalments,  the  mortpaf.'ee  may  enter 
upon  llie  lirst  bn.'acli  and  remain  in  posses-sion,  su'iject  to  account,  but  shall  not  have  a 
foreclosure  oftlio  whole  land.  Caul'man  v.  Sayre,  2  B.  Monr.  203.  See  M:issiria  v.  Bartlett, 
8  For.  277  ;  Leverett  v.  Redwood,  9,  79  ;  Walker  v.  Hallett,  1  Ala.  (N.  S.)  379.  Adopting 
the  same  practice  as  in  New  York. 


484  MORTGAGE— REMEDIES  [CHAP,  XXXVIII. 

due,  the  whole  land  may  be  sold  and  the  whole  debt  paid  Avith  a  rebate 
of  interest. (1) 

20.  In  Georgia,  where  applicaticjn  is  made  to  the  court  for  fore- 
closure of  a  mortgage,  the  court  shall  order  that  the  debt  be  paid  on 
or  before  the  first  day  of  the  next  term — the  order  to  be  served  and 
published  in  a  nevrspaper ;  and,  if  not  complied  with,  the  court  may 
render  judgment  for  the  amount  due,  and  pass  a  rule  absolute  for  a 
sale  of  the  land,  as  upon  execution.  The  surplus  money,  if  any,  shall 
be  paid  to  the  mortgagor.  If  the  mortgagor  make  affidavit  of  payments 
or  set-oflfs,  which  ought  to  be  allowed  him,  the  court  shall  submit  the 
matter  to  auditors. (2) 

21.  In  North  Carolina,  a  strict  foreclosure  has  been  allowed. (3) 

22.  In  Ohio,  the  mortgagee  may  have  a  decree  of  foreclosure,  where 
the  debt  equals  two-thirds  of  the  value  of  the  land  ;  and  he  may  de- 
mand a  sale.  In  Tennessee,  the  mortgagor  has  two  years  to  redeem, 
after  confirmation  of  the  master's  sale,  under  a  decree  of  foreclosure.(4) 

23.  By  the  English  law,  an  equity  of  redemption  may  be  foreclosed 
by  the  act  of  the  mortgagor  himself;  for,  upon  a  bill  to  redeem,  the 
plaintiff  is  required  to  pay  the  debt  by  a  given  time,  usually  six  months 
from  liquidation  of  the  debt,  in  default  of  which  the  bill  is  dismissed ; 
and  this  proceeding  is  a  bar  to  a  new  bill,  and  equivalent  to  a  foreclo- 
sure's) 

2-1.  In  Massachusetts,  a  tender  for  the  purpose  of  redemption  may 
be  made,  even  before  entry  for  breach  of  condition.  If  not  accepted, 
a  tender  shall  not  prevent  a  foreclosure,  unless  a  suit  thereon  is  com- 
menced within  one  year  thereafterwards.  A  bill  for  redemption,  offer- 
ing to  pay  the  money  due,  may  be  brought  without  previous  tender; 
but  the  plaintiff  shall  pay  costs,  unless  the  defendant  has  unreasonably 
neglected  or  refused  to  render  an  account. (a)  Where,  after  entry  of 
the  mortgagee,  it  appears  that  he  has  not  unreasonably  neglected  or 
refused  to  render  an  account,  the  court,  upon  a  bill  to  redeem,  may 
award  to  him,  in  addition  to  the  balance  due  on  the  mortuaae  interest 
thereon,  from  the  expiration  of  three  years  after  entry,  to  the  time  of 
rendering  judgment,  at  a  rate  not  exceeding  12  per  cent,  a  year.  Sub- 
stantially the  same  provision  as  to  tender  is  made  in  Maine.  In  the 
latter  State,  if  the  mortgage  is  given  to  secure  the  payment  of  money 
only,  and  the  whole  is  due,  after  payment  or  tender,  the  mortgagor 
may,  by  a  bill  in  equity,  compel  the  mortgagee  to  give  a  deed  of  release, 
if  he  has  neglected  or  refused  to  do  it,  though  not  in  possession  ;  or  lie 
may  proceed,  as  above  provided,  without  a  tender.(J)  Where  the  mort- 
gagee or  one  claiming  uiider  him  has  entered  for  breach  of  condition, 
the  mortgagor  or  any  one  claiming    under  him  may  redeem  within 

(1)  1  N.  J.  L.  412,  705,  162;  N.  J.  1  Rev.  \  (3)  Spiller  v.  Spiller,  1  Havw.  482.  See 
Sts.  917-18-20.  ch.  37  :   Ingram  v.  Smith,  6  Ired.  Eqn.  97. 

(2)  Prince.  168,  423-4.  See  Hobby  v.  j  (4)  4  Kent,  181,  n. ;  5  Ham.  356 ;  Hen- 
Pemberton,  Dud).  212  ;  Butt  v.  Maddox,  7    derson  v.  Lowrv,  5  Yerg.  240. 

Geo.  495.  I      (5)  4  Kent,  185. 

(a)  See  Bourne  v.  Littlefield,  29  Maine,  302.  Filing  a  bill  is  the  commencement  of  suit. 
Van  Vronker  v.  Eastman   7  Met.  157. 

{h)  In  the  same  State,  a  bill  in  equity  to  redeem  lies  against  the  State.  The  statute 
relating  to  tender  does  not  apply  to  suits  in  the  United  States  Court.  Gordon  v.  Hobart,  2 
Sumn.  401. 


CHAP,  xxxviir.] 


IX  EQUITY,  ETC. 


485 


three  years,  b}'  bringiti,t>;  a  bill  in  equity.  The  court,  upon  a  hearin<r, 
may  render  judi^rnent  acconling  to  equity  and  good  conscience,  and 
award  execution  accordingly  ;  and,  if  the  defendant  fails  to  appear,  or 
refuses  to  coni[)ly  with  the  order  or  judgment,  the  money  shall  be  i)aid 
into  court,  and  execution  issue.  la  New  Hampshire,  payment  or  ten- 
der will  render  the  mortgage  void.  If  the  mortgagee  refuse  tq  release 
or  to  state  an  account  upon  a  written  request,  the  rnortgago^■may  petition 
the  court,  and,  upon  his  bringing  the  money  into  court,  if  merely  ten- 
dered previously,  the  court  shall  order  a  discharge,  and  an  attested 
copy  of  the  decree  shall  be  recorded  in  the  Registry  of  Deods.  If  the 
mortgagee  refuse  to  state  an  account,  the  court  shall  ascertain  the 
amount  due,  and  make  a  similar  decree. (l)(a) 

25.  In  Massachu.setts,  after  the  death  of  the  mortgagor,  only  his  heir 
or  assignee  can  redeem.     In  Maine,  the  executor  also  may  do  it.(2) 

26.  The  statutory  provision  in  Massachusetts,  authorizing  a  mortga- 
gor to  bring  a  bill  for  redemption,  without  actual  tender,  after  having 
demandetl  an  account  from  the  mortgagee,  has  been  the  subject  of  judi- 
cial construction  in  several  cases. 

27.  A  mortgagee  was  asked  by  the  assignee  of  the  mortgagor,  at  the 
olhce  of  the  fornxer,  in  W.,  what  was  due  on  the  mortgage.  He  an- 
swered that  he  owned  the  whole  estate  ;  and,  to  a  second  inquiry,  that 
the  records  would  show.  Being  asked  what  money  would  answer,  he 
replied,  nothing  but  specie;  and  that,  if  tendered,  he  should  act  his 
pleasure  about  receiving  it ;  and,  if  he  took  it,  he  would  discharge  upon 
the  records.  He  also  said,  that  his  papers  were  at  C,  (distant  eight  or 
nine  miles  from  W.,)  and  lie  could  not  ascertain  the  sum  due.  Held,  a 
sulficient  demand  and  refusal,  to  sustain  the  bill  ;  but  not  such  an  un- 

■easonable  refusal,  as  Avould  subject  the  defendant  to  costs.(3) 

28.  A  mortgagor  asked  the  mortgagee,  when  absent  from  the  town 
where  the  latter  resided,  to  make  out  and  furnish  in  reasonable  time  an 
account  of  the  sum  due.  He  replied,  that,  if  the  mortgagor  would  call 
upon  him  at  homo,  he  would  furnish  all  the  information  in  his  power. 
Without  thus  applying,  the  mortgagor  brought  a  bill  to  redeem.  Held, 
it  would  not  lie.(-i) 

29.  But  where,  upon  a  demand  made,  the  mortgagee  said,  he  had  no 
other  account  to  render  than  one  rendered  two  years  before,  which 
turned  out  to  be  erroneous ;  held,  a  sufficient  demand  and  refusal  to 
sustain  a  bill  for  redemption.(5)(^) 


(1)  Ma.s3.  Rev.  St.  636;  Sts.  1850,  Ch. 
21.  (See  St9.  1.S53,  909;)  Me.  L.  1837,  439- 
40;  Rev.  St.  555;  N.  II.  St.  182!).  .'130-1; 
Rev.  St.  246. 


(2)  Smith  V.  Manning,  9  Mass.  422  ;  Me. 
Rev.  St  557. 

(3)  Willard  v.  Fiske,  2  Pick.  540. 

(4)  Fa\'  V.  Valentine,  2  Pick.  546. 

(5)  Battle  v.  Griffin,  4  Pick.  6. 


(a)  If  the  mortjrajyor  would  avail  himself  of  a  tender  made  by  a  third  person,  he  must 
brine  a  bill  in  roasonahJe  time.  Bailey  v.  Willard,  8  N.  II.  429.  A  tender  must  be  uncon- 
ditional. Wendell  v.  N.  H.,  Ac,  9,  404.  Holtoii  v.  Brown,  18  Venn.  224.  If  a  mortgage 
is  as.sigiied  just  before  the  right  of  redemption  expires,  for  the  purpose  of  preventing  a  ten- 
der, the  time  may  bo  enlarged.     Doming  v.  Comings,  II  X.  11.  474. 

{b)  Sucii  demand  may  be  valid,  though  accompanied  by  other  demands  and  proposals, 
which  tiie  mortgagee  is  not  bound  to  notice.  Allen  v.  Clark,  17  Pick.  47.  The  account 
should  state,  not  only  the  amount  due,  but  the  items.  lb.  In  New  Ilamp.shirc,  unless  the 
demand  for  an  account  is  immediately  complied  with,  the  right  of  redemption  lasts  till  it  is. 
Wendell  v.  N.  U.  ic.  9  X.  H.  404. 


486  MORTGAGE— REMEDIES  [CHAP.  XXXVIII. 

30.  In  Maine,  where  tlie  mortgagee,  or  any  one  claiming  under  him, 
h  IS  entered  for  condition  broken,  the  mortgagor,  or  any  one  claiming 
under  him,  may  redeem  within  three  years  after  such  entry,  by  bring- 
ing a  bill  in  equity.  The  court,  upon  a  hearing  of  the  bill,  may  render 
judgment  according  to  equity  and  good  conscience,  and  award  execu- 
ti(jn  accordingly  ;  and,  if  the  defendant  does  not  appear,  or  refuses  to 
comply  with  the  order  or  judgment,  the  money  shall  be  paid  into  court, 
and  execution  issue. (l)(a) 

81.  The  question  has  frequently  arisen,  whether  the  foreclosure  of  a 
mortgage  operates  as  payment  or  extinguishment  of  the  debt,(5)  or 
whether  the  mortgagee  may  still  maintain  an  action  at  law,  for  the  bal- 
ance due  him,  after  deducting  the  fair  value  of  the  property.  The 
better  opinion  is  said  to  be,  that  such  action  may  be  brought.(c)  This 
question  also  involves  the  further  one,  whether  the  foreclosure  is  there- 
by opened,  and  the  right  of  redemption  revived. (2) 

82.  Judge  Story  says,  if  foreclosure  of  a  mortgage  operated  as  pay- 
ment of  the  debt,  it  would  frequently  prove,  in  literal  exactness  of  lan- 
guage, mortuum  vadium,  a  dead  and  worthless  security.  If  the  mort- 
gagee is  compellable  to  make  an  election,  the  pursuit  of  a  remedy  upon 
the  personal  security  is  an  abandonment  of  the  pledge,  while  an  appro- 
priation of  the  latter  is  an  abandonment  of  the  debt.  In  a  case  there- 
fore of  suspected  insolvency,  he  would  be  encircled  with  perils  on  every 
side;  and,  instead  of  a  double  security  for  his  debt,  would  be  left  with 
scarcely  a  single  plank  to  save  himself  in  the  shipwreck. (3) 

38.  The  English  authorities,  upon  both  the  points  above  stated,  seem 
somewhat  contused  and  contradictory. 

34.  It  was  held,  in  an  early  case,  that  a  suit  upon  the  bond  after  fore- 
closure opened  the  foreclosure,  and  let  in  the  mortgagor  to  redeem. 
And  Lord  Thurlow  is  said  to  have  declared,  that  after  foreclosure,  so 
long  as  the  mortgagee  kept  the  estate,  he  must  take  it  vi  satisfaction, 
because  there  was  no  means  of  ascertaining  how  far  it  paid  the  debt  ;(o^) 
but,  after  having  sold  it,  he  might  recover  the  balance  due,  in  a  suit 
upon  the  bond.  On  the  other  hand,  in  the  case  of  Perry  v.  Barker, 
Lord  Eldon  inclined  to  the  opinion,  that,  after  sale,  no  suit  would  lie 
upon  the  bond,  because  the  plaintiff  had  disabled  himself  to  reconvey 
the  estate  ;  but,  at  the  same  time,  he  remarked  that  Lord  Thurlow  had 
decided  that  such  action  would  lie,  either  with  or  without  a  sale.  In  a 
subsequent  hearing  of  the  same  case.  Lord  Erskine  held,  that  a  foreclo- 
sure was  no  bar  to  a  suit  upon  the  bond;  but,  that  the  mortgagor  was 
thereby  enabled  to  redeem,  and,  if  the  mortgagee  had  sold  the  land,  he 

(1)  1  Smith's  St.  159-63.  I  v.  Swan,  3  Mas.  474.)    See  Cullum  v.  Eman- 

(2)  4  Kent,  183.     See  Coote,  570-1.  uel,  1  Ala.  (N.  S.)  23. 

(3)  Hatch  V.  White,  2  Galli.  154;  (Omaly  J 

(a)  If  a  niortojagee  of  land  in  Maine,  in  posse.ssion  for  breach  of  condition,  require,  as  the 
terms  of  redemption,  payment  of  more  than  is  due,  the  party  paying  may  recover  back  the 
money  in  Massachusetts,  in  an  action  for  money  had  and  received.  Cazenove  v.  Cutler,  4 
Met.  246.     See  Gushing  v.  Ayer,  25  Maine,  383 ;   Pease  v.  Benson,  28  Mass.  336. 

{h)  It  does  so  operate,  if  the  property  equals  the  debt  in  value,  even  though  the  foreclo.sure 
is  effected  by  an  assignee,  holding  only  a  p^rt  of  the  mortgage  debt.  Johnson  v.  Candage, 
31  Maine,  28;   Bassell  v.  Mason,  18  Conti.  131. 

(c)  A  fortiori,  after  mere  entry  to  foreclose.     See  ch.  37,  sec  4. 

(d)  In  the  case  of  Lockhart  v.  Hardy,  9  Beav.  349,  the  Master  of  the  Rolls  expressed  the 
same  opinion. 


CHAP.  XXXYIIL] 


IN  EQUITY,  ETC. 


m 


would  be  allowed  time  to  get  it  back.  But  he  also  held,  that,  where 
this  was  impracticable,  Chancery  would  restrain  the  suit  by  a  perpetual 
injunction. (1) 

35.  Judge  Story  questions  the  correctness  of  the  rule,  which  allow.«< 
a  court  of  equit}'  to  restrain  such  suit,  before  the  creditor  has  received 
full  satisfaction;  and  also  that,  by  which  the  suit  is  held  to  have  the 
oflect  of  opening  the  foreclosure.  A  foreclosure  may  wcUbe  deemed  a 
purchase,  at  the  full  value  of  the  land,  if  less  than  the  debt,  and,  if 
greater,  at  the  amount  of  the  debt.  Where  the  value  much  exceeds 
the  debt,  a  foreclosure  can  very  rarely  take  place  ;  it  is,  therefore,  of 
itself,  prima  facie  evidence  of  inferior  value.  By  taking  the  land  the 
creditor  incurs  an  inconvenience.  If  it  afterwards  fall  in  value,  he  is 
the  loser,  and,  therefore,  he  ought  to  be  benefited  by  any  rise  in  value. 
If,  after  foreclosure,  the  mortgagee  should  seek  further  relief  in  equity, 
there  might  be  ground  for  enforcing  the  principle  of  I'cciprocal  equity  ; 
but  there  seems  to  be  no  ground,  upon  which  equity  should  decree  an 
injunction,  in  such  case,  against  the  enforcement  of  legal  rvjJtts.  And, 
even  if  it  should  thus  interfere,  where  the  mortgagee  still  retains  the 
estate,  it  would  seem  that,  after  a  sale,  he  ought  to  recover  the  balance 
remaining  due.  But,  at  all  events,  all  decisions  concur  in  the  principle, 
that  at  law  foreclosure  does  not  bar  a  suit  for  the  balance  of  the  debt. (2) 

3t>.  Judge  Story  proceeds  to  remark,  that,  whatever  may  be  the 
doctrine  of  Chancery  upon  the  subject,  when  acting  upon  its  own 
peculiar  principles  alone,  yet,  where  a  statute  expressly  limits  the 
right  of  redemption  to  a  certain  time  after  possession  taken,  and 
negatives  it  afterwards,  a  foreclosure  cannot  be  opened  by  a  suit  upon 
the  bond. 

37.  In  Connecticut  and  Mississippi,  after  foreclosure,  the  mortgagee 
may  maintain  an  action  for  so  much  of  his  debt  as  the  estate  is  insuffi- 
cient to  satisfy,  estimating  the  value  at  the  time  when  the  right  of 
redemption  expires.  And  in  Connecticut,  the  bringing  of  such  action 
shall  not  open  the  foreclosure.(3) 

38.  In  New  York,  it  has  been  decided  that  a  foreclosure  is  not 
opened  by  bringing  a  suit  for  the  debt.(4)((7) 

39.  But,  in  Vermont,  it  was  held  to  be  reasonable,  though  not 
actually  decided,  that  the  foreclosure  should  be  opened,  and  that  the 
mortgagor,  on  being  sued,  might  file  his  bill  to  redeem,  on  payment 
of  debt  and  costs ;  and  that  tue  mortgagee,  when  he  brings  the  suit, 
should  have  power  to  reconvey.  In  the  same  State,  an  action  may  be 
maintained  upon  promissory  notes,  though  secured  by  a  mortgage 
which  has  been  foreclosed,  and  though,  with  others  secured  in  the 


(1)  Dash  wood  v.  Blytliway,  1  Kq.  Cns.  Abr. 

317;  Tooke  r.  ,  2   Dick.   785;  Perry  v. 

Barker,  8  Yes.  527  ;   lb.  13  Yea.  197. 

(2)  HaU;li  t;.  Wliite,  2  Galli.  159-60-1. 

(3)  Coun.  St.  194.    See  The  Derby,  &c  v. 


London,  3  Conn.  62;  Coit  i'.  Fitch,  Kirby, 
254 ;  McEwen  v.  Welles,  1  Root,  202  ;  Soudi- 
ard  V.  Wilson,  29  Maine,  56 ;  Stark  v.  Mercer, 
3  How.  377. 

(4)  Lansing  v.  Goelet,  9  Cow.  346. 


(a)  Declaration  on  a  bond.  Plea,  that  the  bond  was  executed  to  .secure  a  morttrajjo, 
which  was  foreclosed,  and  the  premises  sold,  whereby  the  debt  was  salisticd.  Replication 
and  proof,  that  the  premises  did  not  sell  for  enoujrh  to  pay  the  bond  and  mortgage.  Gene- 
ral demurrer  and  joinder.  Judgment  for  the  pluiuiiDs.  The  Globe,  ic.  v.  Lansing,  6  Cow. 
380. 


488 


MORTGAGE— REMEDIES 


[CHAP.  XXXVIII. 


same  way,  they  were  described  in  the  bill  of  foreclosure ;  if  not  pre- 
sented to  the  Master  on  taking  the  account,  nor  included  in  the 
decree.(l)  In  Massachusetts, (2)  the  Eevised  Statutes  provide,  that 
where  a  mortgagee  sues  after  foreclosure  for  the  balance  of  his  debt, 
the  mortgage  shall  have  the  right  to  redeem  at  any  time  within  one 
year  from  judgment  recovered. (a) 

40.  The  right  of  redemption  may  be  revived  by  the  acts  of  the 
mortgagee,  or  by  special  agreement,  even  after  foreclosure. 

41.  Thus,  the  foreclosure  is  waived  by  a  subsequent  acceptance  of 
the  money  due,  or  a  part  of  it.(3) 

42.  A  mortgagee,  having  taken  legal  possession  of  the  land  for  fore- 
closure, afterwards  agreed  in  writing  with  the  mortgagor,  that  he 
would  reconvey,  whenever  his  debt  should  be  satisfied  from  the  rents 
and  profits,  or  otherwise.  After  the  lapse  of  three  years  from  entry, 
the  mortgagor  brought  a  bill  to  redeem,  and  a  redemption  was 
decreed. (4) 

43.  So,  where  the  assignee  of  a  mortgage,  having  purchased  the 
land  at  a  sale  made  under  a  decree  for  foreclosure,  agreed  with  the 
mortgagee,  for  valuable  consideration,  to  hold  the  land  as  security  for 
the  sum  paid  for  the  assignment,  and  in  trust  for  the  assignor ;  decreed 
in  equity,  that  the  assignee  should  reconvey  to  the  assignor  upon  pay- 
ment of  the  sum  stipulated,  deducting  equitable  allowances  for  profits 
and  waste.(5) 

44.  On  the  other  hand,  where  a  mortgaged  estate  has  been  sold, 
and  the  mortgagee  discharges  the  mortgage,  upon  the  supposition 
that  the  sale  is  valid,  and  it  is  afterwards  set  aside,  the  mortgage  will 
be  revived  in  equity. 

45.  A  mortgagee  purchased  the  mortgaged  estate  at  a  sale  upon 
execution,  and,  having  received  a  deed  from  the  officer,  entered  satis- 
faction on  the  mortgage.  Upon  a  bill  in  equity  filed  by  the  debtor, 
to  set  aside  the  sale'as  irregular  and  void,  it  was  decreed  that  the  sale 
be  set  aside,  and  the  deed  cancelled  ;  but  also,  that  the  complainant 
should  pay  the  amount  due  to  the  defendant,  within  a  certain  time,  or 
else  the  mortgage  be  foreclosed  and  the  land  sold.(6) 

46.  In  Massachusetts,  a  widow,  claiming  dower,  cannot  maintain 
a  bill  in  equity  to  redeem,  where,  under  the  circumstances,  she  might 
maintain  a  suit  at  law.  Hence,  the  bill  must  allege,  either  that  the 
husband  mortgaged  the  land  before  marriage,  or  that  the  wife  joined 


(1)  Lovell  V.  Leland,  3  Verm.  581 ;  Lang- 
don  V.  Paul,  20  Verm.  217.  See  Lawrence 
V.  Fletcher,  8  Met.  165  ;  10,  344;  Leland  v. 
Loring.  10,  125. 

(2)  Mass.  Rev.  St.  638. 


(3)  Batchelder  v.  Robinson,  6  N.  H.  12 
Deming  v.  Comings,  11,  474. 

(4)  Quint  V.  Little,  4  Greenl.495. 

(5)  Southgate  v.  Taylor,  5  Munf.  420. 

(6)  Zylstra  v.  Keith,  2  Des.  141. 


(a)  The  mortgagee  may  sue  upon  the  mortgage  note,  after  entry  for  condition  broken, 
and  before  foreclo.sure.  It  is  no  defence,  that  the  value  of  the  property  equals  the  amount 
of  the  note.  Bank,  Ac.  v.  Fox,  Maine  S.  J.  C,  April  T.  1841— Law  Rep.  July,  '41,  p.  121. 
See  Briggs  v.  Richmond,  10  Pick.  396.  In  New  Hampshire,  after  foreclosure,  the  property 
is  treated  as  payment  ^5?-o  tanto.  If  more  notes  than  one  were  secured,  and  one  only  was 
due  at  the  time  of  entry,  the  payment  shall  he  applied  to  this  one.  Hunt  v.  Stiles,  10  N.  _H. 
466.  In  Maine,  where  a  mortgage  is  foreclosed,  the  value  of  the  land  shall  go  to  extinguisli 
■  ''Q  debt,  wholly  or  pro  tanto.     Southard  v.  Wilsou,  29  Maine,  56. 


CriAP.  XXXVIII.]  IN  EQUITY,  ETC.  "  ^ 

in   a  mortgage  made  after  marriage ;  in  either  case,  tlic  title  of  the 
wife  being  a  mere  equity,  and  not  a  legal  estate.(lXa) 

47.  In  Virginia,  a  mortgagor  may  in  general  redeem,  after  the 
mortgagee  has  purehased  the  land,  at  a  sale  made  under  a  judgment 
for  tlie  debt.  lUit  if  the  judgment  was  recovered  as  again.st  an  ab- 
sconding and  fiaudulent  debtor,  redemption  will  be  refused,  upon  the 
maxim,  that  "  he  who  hath  done  iniquity,  shall  not  have  cqjiity."('2) 

48.  Where  the  mortgagor,  in  a  suit  lor  redemption,  pays  money 
into  CDurt,  and  the  defendant  disputes  his  right  to  redeem,  and  pre-  ^ 
vails,  the  defendant  is  not  entitled  to  retain  the  money.  The  payment 
is  a  provisional  one,  an  offer  to  pay  money  in  discharge  of  the  debt, 
and  for  the  purpose  of  removing  the  incumbrance.  The  defendant,  by 
his  ilefence,  denies  that  there  is  any  debt  secured  by  mortgage,  and  his 
own  formal  act  shows  that  he  has  no  claim  to  the  money. (8) 

4D,  Where  the  mortgagor  has  contracted  to  convey  the  right  in 
equity  to  a  third  person,  who  thereupon,  on  his  own  account,  p:iys 
the  rnortgage  debt  to  the  mortgagee,  and  the  mortgagor  afterwards 
rescinds  the  bargain  ;  the  latter  cannot  avail  himself  of  such  paymeuts, 
on  a  bill  in  equity  to  recover  the  land. 

50.  Bill  in  equity  to  redeem  a  mortgage.  Two  of  the  plaintiffs, 
purchasers  of  an  equity  of  redemption,  contracted  with  one  lliehardson, 
to  sell  him  the  land  for  $5,000,  he  providing  for  the  redemption  and  for 
payment  of  the  mortgage  debt,  amounting  to  $3,000  nearly,  and  secu- 
ring the  surplus  to  the  plaintiffs ;  the  defendants,  the  mortgagees,  having 
agreed  to  convey  the  land  to  Richardson,  if  not  redeemed,  and  to  pay 
him  the  amount  due  for  redemption, if  it  should  be  seasonably  demanded. 
Richardson  paid  the  mortgage  debt  to  the  defendants  ;  who,  in  fulfil- 
ment of  their  agreement,  gave  a  bond  to  Richardson  conformable  thereto. 
Two  of  the  plaintiffs  were  parties  to  this  arrangement.  Their  induce- 
ment was,  that  the  third  plaintiff  was  absent  at, sea,  and  therefore  a  title 
could  not  be  made  to  Richardson  except  through  the  defendants,  and 
also  an  apprehension  by  the  defendants,  that  the  mortgagors  might  have 
a  right  to  redeem  without  the  consent  of  the  plaintiffs.  Hence,  it  was 
agreed  that  Richardson  should  take  his  title  from  the  defendants,  after 
a  foreclosure  of  their  mortgage.  Held,  the  intention  and  effect  of  the 
transaction  was,  that  the  defendants  assigned  the  mortgage  to  Richard- 
son, suljject  to  the  remaining  equity,  the  plaintiffs  releasing  their  equity 
of  redenij)tion,  on  being  paid  or  secured  their  shares  of  the  suiplus 
over  the  mortgage  debt;  that  the  bargain  between  two  of  the  plaintiffs 
and  Richardson  did  not  depend  upon  the  consent  of  the  absent  plaintiff, 
as  the  title  was  to  come  through  the  defendants ;  that  Richardson's 
payment  to  the  defendants  must  be  considered  as  made  for  himself, 
upon  a  purchase  of  the  land,  not  in  discharge  of  the  mortgage,  which 
would  defeat  the  object;  that,  although  the  absent  plaintiff  had  no 
oi)portunity  to  assent  to  the  bargain   or  otherwise,  yet,  as  the  other 

(1)  Messiter  v.  Wright,  16  Pick.  151.  i       (3)  Putnam  v.  Putnam,  1.3  Pick.  131,  132. 

(2)  Dabney  v.  Green,  4  II.  i  Mun.  101.       | 


(a)  On  the  other  hand,  in  case  of  a  mortgage  made  before  marriage,  the  widow  cannot 
have  a  remedy  at  law  against  tite  mortgagee,  or  one  holding  under  him.  Van  Duyne  v. 
Thayro,  19  "Wond.  1G2.  Si-e  Collins  v.  Torry,  7  John.  278;  Coales  v.  Cheever,  1  Cow.  475 ; 
Cooper  V.  Whitney,  3  Hill,  95. 


490 


MORTGAGE— EQUITABLE 


[CHAP.  XXXIX. 


plaintiffs  were  unable  to  redeem,  the  transaction  was  ttie  best  that  could 
be  done  for  him  in  preventing  a  foreclosure  ;  and  ihat  the  plaintiffs 
were  not  entitled  to  redemption.(l) 


CHAPTER  XXXIX. 


MORTGAGE— EQUITABLE  MORTGAGES  AND  LIENS. 

I  45.  Lien  of  purchaser  after  payment. 


1.  Deposit  of  title  deeds. 

9.  Lieu  for  purcliase-money. 


1.  In  Equity,  if  the  owner  of  an  estate  deposit  the  title  deeds  with  a 
creditor,  this  constitutes  a  mortgage  of  such  estate,  as  against  the  owner 
himself,  and  any  purchaser  from  him  having  actual  or  con.<tructive 
notice  of  the  fact ;  which  mortgage,  like  others,  may  be  enforced  by  a 
bill  and  decree  for  sale  or  foreclosure.(a)  This  doctrine  has  been  strongly 
opposed,  since  its  first  introduction  in  1783,  by  very  distinguished 
judges;  but  is  said  to  be  now  firmly  established.  The  rule,  however, 
is  construed  strictly,  and  not  extended  by  any  implication.  Thus,  it  is 
held,  that  all  the  deeds  must  be  actually  and  bona  fide  deposited  with 
the  mortgagee  himself.  Nor  will  a  mere  parol  agreement  to  deposit  or 
to  mortgage  be  enforced. (2) 

2.  A  lease  having  been  pledged  by  a  person,  who  afterwards  became 
bankrupt,  to  the  plaintiff,  as  securit}'-  for  a  loan,  the  pledgee  filed  his 
bill  for  a  sale  of  the  leasehold.  Held,  this  Avas  a  delivery  of  the  title 
for  a  valuable  consideration.  The  court  had  nothing  to  do  but  to  sup- 
ply the  legal  formalities  ;  and,  in  all  these  cases,  the  contract  is  not  to 
he  performed,  but  is  executed.  The  court  afterwards  ordered  the  lease 
to  be  sold,  and  that  the  plaintiff  be  paid  his  money. (3) 

3.  In  a  note  to  this  case,  it  is  said,  Lord  Thurlow  held,  the  deposit 
of  deeds  entitled  the  holder  to  have  a  mortgage^  and  to  have  his  lien  effec- 
tuated; and,  although  there  was  no  special  agreement  to  assign,  the 
deposit  affords  a  presumption  that  such  was  the  intent. 

4.  So,  where  the  title-deeds  of  an  estate  were  deposited  with   the 


(1)  Howard  v.  Agry,  9  Mass.  179. 

(2)  4  Kent.  149-50;  Pain  v.  Smith,  2  My. 
&K.  417  ;  Lewthwaite  v.  Clarkson,  2  Y.  & 
Coll.  372.  See  3  lb.  55  ;  Hodge  v.  Att'y- 
Gen.,  lb.  342  ;  Tylee  v.  Webb,  6  Beav.  552  ; 
Rogers  v.  Maule,  1  Y.  &  Coll.  Cha.  4 ;  Ede  v. 
Knowlea,  2  lb.  172  ;  Meggison  v.  Foster,  lb. 
336  :  Rollestone  v.  Morton,  1  Dr.  &  War.  195; 
Mandeville  v.  Welch.  5  Wheat.  284;  Hock- 
ley i;.  Bantock,  1  Russ.  141;  Langston,  17 
Vez.  230 ;  Ashton   v.    Dalton,  2  Coll.   565 ; 


Brizick  v.  Manners,  9  Mod.  284 ;  Sims  v. 
Helling,  9  Eng  L.  &  Equ.  45  ;  Hiern  v.  Mill, 
13  Vez.  114;  Boson  v.  Williams,  3  Y.  &  J. 
150. 

Whether  the  rule  is  adopted  in  the  United 
States,  see  2  Greenl.  v.  Cruise,  85  n. ;  Rock- 
well V.  Hobby,  2  Sandf  Ch.  9  ;  Day  v.  Per- 
kins, lb.  359;  Hallv.  M'Duff,  UShepl.  311; 
Clabaugh  v  Byerly,  7  Gill,  354. 

(3)  Russell  V.  Russell,  1  Bro.  269,  &  n. 


(a)  As  to  equitable  mortgages,  see  2  Dea  &  Chit.  303;  2  My.  &  K.  417;  8  You.  <t  Coll. 
55.  In  case  of  foreclosure  of  an  equitable  mortgage,  six  months  are  allowed  to  redeem. 
Thorpe  v.  Gardside,  2  You.  &  Coll.  130.  See  Coote,"220.  Such  mortgage  cannot  prevail 
against  a  creditor  without  notice,  who  afterwards  recovers  a  judgment.  Whitworth  v. 
Gaugain,  3  Hare,  416. 


CHAP.  XXXIX.] 


MORTGAGKS  AND  LIKNS. 


4M 


j)laintiffas  security,  and  the  defeiulant,  fourtcicn  years  afterwards,  when 
the  owner  was  upon  the  eve  ofbankruptcy,  took  a  mortgage,  ante-dated, 
and  purporting,  but  untruly,  to  be  (or  money  then  advanced  ;  and  the 
defL-ndaiit  had" notice  of  tlie  deposit,  but  avoided  inquiring  for  what 
purpose  it  was  made;  held,  in  a  bill  brought  by  the  plaintiff  against 
tlie  defendant  for  foreclosure,  that  tlic  latter  should  either  i>ay  the 
plaintiff's  demand,  or  stand  foreclosed,  &c.  The  court  rerniirkt-d,  that 
the  deposit  of  title-deeds  as  security  is  evidence  of  an  agreement  to 
make  a  mortgage,  and  the  agreement  is  to  be  carried  into  execution  by 
the  court  against  the  mort.tzagor,  or  any  one  claiming  under  him,  with 
notice  exi)ress  or  implied. (1) 

5.  Lord  Eldou  said,  the  decision,  that  a  mere  dejmsit  of  deeds  shall 
be  evidence  of  an  agreement  for  a  mortgage,  is  much  to  be  lamented. 
It  has  led  to  discussion  upon  the  truth  and  probability  of  evidence,  which 
the  very  object  of  the  statute  of  I'rauds  was  entirely  to  exclude.  In 
another  case,  the  same  judge  declared,  that  a  deposit  of  deeds  should 
not  be  considered  as  a  mortgage,  except  in  a  clear  case ;  and  he  refused 
so  to  treat  it  in  the  cause  before  him. (2) 

().  Sir  William  Grant  remarket],  that  the  mere  fact,  that  one  man's 
title  deeds  are  found  in  another's  possession,  is  not  conclusive  of  any 
purpose  to  mortgage  the  estate.  It  may  exist  without  any  contract 
whatever.  Where  the  deposit  is  made  when  the  money  is  advanced,  it 
is  obvious  that  the  purpose  of  the  deposit  must  be,  to  secure  the  repay- 
ment of  the  money,  and  there  is  little  to  be  supplied  by  other  evidence. 
The  connection  is  not  so  direct,  between  a  debt  antecedently  due  and  a 
subsequent  deposit;  nor  is  the  inference  so  plain.  And,  where  the 
deeds  are  delivered,  not  as  a  present  security,  but  only  for  the  purpose 
of  enabling  the  attorney  to  draw  a  mortgage,  wdiich  lias  been  agreed 
for;  the  principle  is  wholly  inapplicable.(a)  The  deposit  of  deeds  is 
indeed  held  to  imply  an  obligation  to  execute  a  conveyance,  whenever 
required.  But,  in  such  case,  the  primary  intention  is,  to  execute  an  im- 
mediate pledge ;  with  an"  implied  engagement  to  do  all  that  may  be  ne- 
cessary to  render  the  pledge  effectual  for  its  purpose.  But,  in  the  case 
supposed,  there  was  no  intention  \o  put  the  deeds  into  pledge.  Nor 
does  the  death  of  tlie  owner,  before  making  the  proposed  mortgage, 
give  any  effect  to  the  transaction  as  a  deposit.(3) 

7.  So  Lord  Eldon  remarked,  that  it  was  an  error  to  suppose,  that  a 
deposit  of  deeds  can  refer  to  nothing  but  an  intention  to  subject  the  es- 
tate. A  deposit  may  be  of  considerable  use,  without  any  such  object. 
The  right  to  hold  the  deeds,  and  so  to  work  out  payment,  is  of  great 
value.(4) 

8.  It  is  understood  to  have  been  the  old  rule  in  the  English  Chan- 
cery, that,  if  a  lirst  mortgagee  voluntarily  left  the  title  deeds  with  the 
mortgagor,  he  should  l)e  postponed  to  a  sub.scquent  mortgagee  without 
notice,  and  in  |)0.ssession  of  the  deeds ;  because  he  thereby  enabled  the 
mortgagor  to  impose  upon  others,  who,  in  the  absence  of  a  registry, 


(1)  Birch  V.  EWames,  2  Anst.  427. 

(2)  Kx  pnrto  linigh,  1 1  W'n.  40H-4,  ami  n. 
Seo  Wliiibread'8  case,  19  Vuz  211;  Coote, 
222. 


(3)  Norris  v.  Wilkinson,  12  Vos.  197-8-9. 
See  Cliapinan  v.  Chapman,  3  Krip.  L  A  Kqu. 
70 

(4)  Ex  parte  Hooper,  19  Vos.  479. 


(o)  See  Keyes  v.  Williams.  3  Y.  i  Coll.  55. 


492 


MORTGAGE— EQUITABLE 


[CHAP.  XXXIX. 


could  look  for  their  security  only  to  the  deed,  and  the  possession  of  the 
mortgagor.  Chancellor  Kent,  however,  is  of  opinion,  u[)on  a  review 
of  the  cases,  that  there  is  not  the  requisite  evidence  of  the  existence  of 
any  such  rule  in  equity,  as  has  been  stated  by  some  of  the  judges;  or,  if  it 
once  existed,  that  it  has  been  changed.  He  says,  the  settled  rule  is  now, 
that  this  circumstance  will  not  defeat  a  prior  mortgage,  unless  accom- 
panied with  fraud  or  gross  negligence,  or  a  voluntary,  distinct  and  un- 
justifiable concurrence,  on  the  part  of  the  fii'st  mortgagee,  to  the  retain- 
ing of  the  deeds.  And,  in  the  United  States,  wliere  the  registry  sys- 
tem generally  prevails,  the  alleged  rule  is  still  less  applicable.  Hence, 
where  a  leasehold  is  mortgaged,  the  leaving  of  the  lease  with  the  mort- 
gagor is  no  evidence  of  fraud,  because  the  registry  is  a  beneficial  sub- 
stitute for  the  deposit  of  the  deed,  and  gives  better  and  more  efiectual 
security  to  subsequent  mortgagees.(l)(a) 

9.  Analogous  to  the  lien  just  mentioned,  is  the  equitable  lien  which 
the  vendor  of  land  has  against  the  purchaser,  for  the  price  of  the  land, 
or  such  part  of  it  as  remains  unpaid.  Chancellor  Keiu  says,  this  right, 
said  to  be  derived  from  the  civil  law,  is  well  established  in  England, 
and  has  been  recognized  in  the  States  of  Kentucky,  New  York,  Con- 
necticut, Ohio,  Tennessee,  North  Carolina,  Indiana,(?>)  and  by  the  Su- 
preme Court  of  the  United  States.  In  Connecticut,  however,  it  has 
been  somewhat  qualified.  In  Pennsylvania,  the  right  was  formerly  as- 
sumed to  exist,  but  has  been  since  denied.  The  same  author  and  Judge 
Story  give  the  following  general  view  of  the  law  upon  this  subject.(2) 

10.  To  constitute  this  lien,  no  possession  is  required,  and  it  applies 
equally,  whether  the  transaction  is  a  sale,  or  a  mere  executory  contract. 
Although  sometimes  "placed  upon  the  footing  of  an  express  agreement 
or  assent,  it  is  now  held  to  be  independent  of  any  such  consideration. 


(1)  Berry  v.  Mutual,  &c.,  2  Jolin.  Oha.  608- 
9  ;  Johnson  v.  Stajjg,  2  John.  510.  See  Head 
V.  Egerton,  3  P.  Wms.  279  ;  Van  Meter  v. 
McFaddin,  8  B.  Mon.  435  ;  Shifz  v.  D.eften- 
bach,  3  Barr,,233  ;  Ryall  v.  Rolle,  1  Atk.  168 ; 
Coote,  214,  486;  Hewitt  v.  Loosemore,  9  Eng. 
L.  &  Kqu.  35  ;  Hooper  v.  Ramsboltom,  6  Taun. 
12  ;  Goodtitle  v.  Morgan,  1  T  .R.  755  ;  Sump- 
ter  V.  Cooper,  2  B.  &  Ad.  223  ;  Harrington  v. 
Price,  3,  170  ;  Womhle  v.  Battle,  3  Ired.  Equ. 
183  ;  Mims  v.  Macon,  &c.,  3  Kelly,  341;  Man- 
ly V.  Sla.son,  21  Verm.  271 ;  Glower  v.  Raw- 
lings,  9  Sm.  &  M.  132 ;  Atwood  v.  Vincent, 


17  Conn.  583  ;  Weed  v.  Beebe,  21  Vern  495  ; 
Conover  v.  Warren,  I  Gilra.  498  ;  Hepburn 
V.  Snyder,  3  Barr,  72;  Watson  v.  Wells.  5 
Conn.  468;  School,  &c.  v  Wright,  12  lUin. 
432  ;  Williams  v.  Stratton,  10  Sm.  &.  M.  418. 
(2)  4  Kent,  151-3  ;  2  Story,  461-71.  See 
11  Gill  &  J.  217;  Kleiser  V.  Scott,  6  Dana, 
137  ;  Howlett  v.  Thompson,  1  Ired.  Equ. 
369;  Nazareth,  &c.  v.  Lowe,  1  B.  Monr. 
259;  Williams  v.  Woods,  1  Humph.  408; 
Roberts  v.  Rose,  2,  145 ;  Campbell  v.  Bald- 
win, lb.  253;  Stewart  v.  Ives,  1  Sm.  &  M. 
197. 


(a)  It  has  been  held  in  Massachusetts,  that  the  Supreme  Court  has  no  jurisdiction  of  suits 
in  equity  for  foreclosure  or  redemption  of  equitable,  mortgages.  Eaton  v.  Green,  22  Pick. 
526. 

(b)  And  in  Alabama,  Mississippi,  Virginia  and  Georgia,  (2  Yerg.  85  ;)  Haley  v.  Bennet, 

5  Por.  452;  Graham  v.  McCampbell,  Meigs,  52.  Also  in  Maryland,  Missouri,  Michigan,  Illin- 
ois and  Vermont,  2  Sugd.  (Amer.)  324,  n.  But  in  Virginia,  by  a  recent  statute,  it  does  not 
exist,  unless  expressly  reserved.  Vir.  Code,  510.  So  in  Vermont,  it  is  now  expressly  abol- 
ished. Sts.  1851,  42.  And  in  North  Carolina,  a  late  decision  has  settled  that  the  English 
rule  is  not  in  force  in  that  State.  Cameron  v.  Mason,  7  Ired.  Equ.  180.  The  lien  is  said  to 
exist  only  in  equity ;  and  not  where  the  vendor  has  a  legal  remedy.     Pratt  v.  Van  Wyck, 

6  Gill  &  J.  498;  Colquitt  v.  Thomas,  8  Geo.  258;  Rowntree  v.  Jacob,  2  Taun.  141.  It 
applies  to  forced  sales  by  operation  of  law.  Mims  v.  Macon,  &c.  3  Kelly,  342.  Whether 
it  applies  to  a  mortgage,  or  the  assignment  of  one,  see  Pratt  v.  Van  Wyclc,  6  Gill  &  .J.  498 ; 
Mount  V.  Suydam,  4  Sandf.  Ch.  399.  Judge  Marshall  says,  it  has  not  been  extensively  re- 
cognized.    7  Wheat.  52. 


CnAP.  XXXIX.]  MORTGAGES  AND  LIICNS.  49S 

11.  The  lien  in  question  is  prima  facie  presumed  to  exist,  Lut  may  be 
ncnitivcd  by  special  circumstances.  Thus  it  does  not  exist  where  the 
object  of  the  sale  was  not  money,  but  some  collateral  benelit.  It  was 
once  held,  that  the  lien  was  defeated  by  the  vendor's  taking  an  express 
and  distinct  securit}--,  such  as  a  bond  or  note,  for  the  price;  but  this 
rule  is  now  so  far  qualified,  that  the  lien  is  destroyed  only  by  the  ta- 
king of  collateral  security,  whether  in  property  or  in  the  efr^agemcnt  of 
som"  thiid  person.((f)  The  giving  of  a  receipt  ui)on  the  deed  for  the 
consideration  does  not  destroy  the  lien. 

12.  This  lien  is  valid  as  against  the  purchaser,  liis  heirs,  &c.,  and 
widow,  and  all  subsequent  purchasers  from  him  with  notice  or  without 
consideration  ;  but  not  against  creditors  holding  under  a  bona  fide  con- 
veyance, or  subsequent  purchasers  without  notice.  To  avail  himself 
of  "notiet!  to  a  subsequent  purchaser,  the  law  does  not  require  the  ven- 
dor to  attend  such  subsequent  sale,  nor  is  the  lien  defeated,  if  such 
purchaser  have  notice  before  payment  of  the  imrchase-mo)icy.{h) 

V6.  The  lien  of  a  vendor  upon  land  sold,  for  the  purchase-money, 
mav  be  classed  as  a  constructive  trust,  not  within  the  statute  of  frauds. 
It  is  said  to  be  neither  jus  in  re,  nor  jus  ad  rem,  neither  property  nor  a 
right  of  action  ;  but  a  charge. 

14.  The  history  of  the  doctrine,  that  the  vendor  of  land  has  a  lien 
for  the  unpaid  purchase  money,  is  thus  given  by  Chancellor  Walworth, 
in  the  case  of  Fish  v.  lIowland.{l) 

(1)  1  Paige,  24-30. 


(a)  In  Maryland,  taking  a  note  with  an  indorser  is  no  waiver  of  the  lien.  Magruder  v. 
Peter.  11  Gill  &  J.  217.  But  where,  upon  a  sale  of  land,  there  i.s  a  written  declaraiion  that 
the  vendor  takes  an  assi^,'iiment  of  a  certain  mortgage  security,  williout  recourse  to  the 
mortgagee  for  payment  of  tlie  mortgage  debt;  tiiere  is  no  lien  fur  tlio  purchase-money. 
Uii-h!irilsoii  V.  Uij^ely,  8,  87.  An  express  lien  excludes  an-implied  one.  Kidgely  v.  Igle- 
hart,  3  Hland,  517.  Tl>e  lien  referred  to  is  paramount  even  to  the  claim  of  the  vendee's 
widow  for  dower.  Ellicott  v.  Welch,  2,  244.  It  may  be  taken  advantage  of  as  against  the 
vendee,  by  a  surety  who  pays  for  tlie  land,  even  as  against  a  second  purchaser  with  notice. 
Melny  v.  Cooper,  2  Biand,'l99;  Magruder  v.  Peter,  11  Gill  &  J.  217.  Where  a  vendor 
has  not  conveyed  the  legal  title,  and  the  vendee  does  not  live  in  the  State,  the  lormer  may 
maintain  a  bill  in  equity  for  a  side  of  the  land,  without  first  proceeding  at  law.  G.een  v. 
Fowler,  11  Gill  and  J,  103.  Prima  facie,  the  law  implies  a  lien  lor  tlie  purchase-money  of 
land  sold.  And  a  provision  in  the  contract  of  sale,  reserving  the  legal  titlo  in  the  vendor 
till  payment  of  the  whole  price,  is  conclusive  evidence  of  such  lien.  Magruder  v.  Peter,  11 
Gill  k  J  217.  In  Alabam.a,  the  lion  is  waived  by  taking  personal,  or  a  distinct  collateral 
secuiiiy.  Foster  v.  Trnstees,  Ac,  3  Alab.  (N.  S.)  302.  In  Ki-ntuck}',  where  there  are  several 
purchasers  from  the  original  vendee,  the  lien  shall  be  apportioned  among  them  pro  rata. 
iturks  V.  (.Mui.sman,  3  B.  Monr.  50.  Whether  tiiere  shall  be  an  entire  lien  upoTi  separate  lots 
cjnvoyed  by  one  transfer;  see  Daw.son  v.  Mitchell,  4,  213.  If  a  suit  is  brouglu  to  cnlbrce 
the  hi-n  against  a  subsequent  purciiaser,  tlie  lormer  one  must  be  made  a  partv.  .Sin-k-ton 
V.  Gavle.  8  Por.  271.  See  1  Sm.  &  M.  197  ;  Gilman  v.  Brown,  1  Mas.  191  ;  4'Whei.t.  255; 
Williams  V.  Roberts,  5  Ham.  25  ;  Foster  v.  Trustees,  &c.,  3  Alab.  (N.  S.)  302  ;  Marshall  v. 
Christma.",  3  Flumpli.  316. 

(h)  See  Hallock  V.  Smith,  3  Barb.  2G7  ;  Briscoe  v.  Bronaugh,  1  Tex.  326;  Manly  v. 
Slason.  21  Verm.  271  ;  Ilonnre  v.  B;ikowell,  6  B.  Monr.  07;  Hopkins  v.  Garmrd,  7,  312; 
Tiiornton  V  Knox,  6,  74;  Woodward  v.  Woodward,  7,  116;  Ewingv.  Beauchamp.  6,422: 
Hogiiatt  V.  Wade,  10  Sin.  4  M.  143:  Kilpatrick  v.  Kilpatrick,  23  Miss.  124;  Tl.redgill  v. 
Pintard.  12  How.  24 ;  Scott  v.  M'Cullock,  13  Mis.-*.  13;  Boon  v.  Barnes,  23  Miss.  136; 
Beirne  V.  Campbell,  4  Gratt.  125;  Glasscock  v.  Robinson,  13  Sm.  4  M.  85;  Way  v.  Patty, 
1  Smith,  44;  Taft  v.  Stpphen>on,  9  Kng.  L.  k  Kqu.  80;  Miller  v.  Stump.  3  Gill,  304;  Lynam 
V.  Green.  0  B  Mon.  363;  Crane  v.  Palmer,  8  Blackf.  120;  Bisland  v.  Hewett.  11  S.  .t  M. 
164.  Ad  to  the  parties  by  whom  the  lien  mav  bo  enforced,  see  Kleiser  v.  Scott,  6  Dana, 
138;  Betton  v.  Williams,  4  Flor.  11;  Growniiig  v.  Belin,  10  B.  Mon.  333;  Planters'.  Ac.  v. 
Dodson,  9  Sm.  k  M.  527  ;  Green  v.  Demos.s,  10  Hump.  371;  Wellborn  v.  Willjims,  •»  Geo. 
86 ;  Dixou  v.  Dixon,  1  Md.  Cb.  220. 


494:  MORTGAGE— EQUITABLE  [CHAP.  XXXIX 

15.  The  earliest  case  is  Chapmmw.  Tanner,  in  1684.(1)  In  that  case, 
Lord  Guilfoi'd  held,  that  the  vendor  of  land,  to  one  who  had  become 
bankrupt,  had  a  lien  ibr  the  price,  upon  a  principle  of  natural  equity, 
and  did  not  stand  as  a  general  creditor.  But  it  is  said,  tliere  was  a 
special  agreement  that  the  seller  should  retain  the  title  deeds.(2) 

16.  In  Bond  v.  Kenl,(S)  a  mortgage  was  given  for  a  part  of  the 
price,  and  a  note  for  the  rest.  Held,  there  was  no  lien  for  the  latter 
sum. 

17.  In  Coppin  V.  Coppin,{4:)  Lord  King  held,  there  was  a  lien, 
notwithstanding  the  indorsement  of  a  receipt  for  the  price  upon  the 
deed. 

18.  In  Pollexfen  v.  Moore,{5)  Lord  Hardwicke  charged  the  land  with 
the  lien  in  the  hands  of  an  heir.  But  the  conveyances  were  there 
retained. 

19.  In  Burgess  v.  Wh€at,{6)  the  general  principle  is  recognized, 

20.  In  Tardiff  v.  /Schri(gan,{7)  a  man  conveyed  an  estate  to  his  two 
daughters,  in  consideration  ot  an  annuity,  and  they  gave  a  joint  bond 
theryfbr.  One  of  them  married  and  died,  and  her  husband,  having  a 
life  interest  in  a  moiety  of  the  land,  refused  to  pay  any  part  of  the  an- 
nuity. Upon  a  bill  filed  by  the  other  sister  and  her  husband,  Lord 
Camden  held,  that  a  moiety  of  the  annuity  was  a  lien  upon  the  land  in 
the  hands  of  the  defendant ;  and  decreed,  that  he  should  pay  a  moiety 
of  the  arrears,  and  keep  down  a  moiety  of  the  future  payments. 

2L  In  Farwdl  v.  Bee(is,{H)  Lord  Bathurst  held,  that  taking  the  bond 
of  the  purchaser,  payable  at  a  future  time,  was  a  discharge  of  the  lien. 
(It  is  said,  however,  that  this  case  has  been  often  overruled.)(a) 

22.  In  Blackburn  v.  Gregson,{9)  the  same  question  was  agitated,  but 
not  decided. 

23.  In  Austiri  Y.Halseg,{10)  where  a  legatee  claimed  the  privileges  of 
the  vendor  in  asserting  a  lien,  Lord  Eldon  recognized  the  rule,  that  the 
vendor  has  such  lien,  as  against  the  purchaser,  unless  the  contract 
clearly  shows  a  contrary  intent. 

2-1.  In  Nairn  v.  Eou.'ie,{ll)  Sir  William  Grant  admitted  the  general 
rule,  but  remarked,  that  if  the  vendor  does  not  trust  to  the  lien,  but 
carves  out  a  security  for  himself,  it  is  doubtful  whether  the  lien  is  or 
is  not  waived. 


(1)  1  Vern.  2G7. 

(2)  Amb.  726,  1  Bro.  4  24,  n.  b. 

(3)  2  Vern.  281. 

(4)  2  P.  Wras.  291. 

(5)  3  Atk.  272. 

(6)  1  Eden,  211. 


(7)  Cited  1  Bro.  423. 

(8)  Amb.  724. 

(9)  1  Bro.  420,  1  Cox,  90. 

(10)  6  Ves.  475. 

(11)  6  Ves.  752. 


(a)  Upon  tlie  que.stion,  whether  the  lien  is  waived  by  takin<r  other  security,  see  Honore 
V.  Bakewell,  6  B.  Moii.  67;  Thornton  v.  Knox,  lb.  74;  Palmer,  1  Doug].  (Mich.)  422; 
Clower  V.  Kawlings,  9  Sin.  k  M.  122;  Johnson  v.  Sujjg,  13,  346;  Manly  v.  Slason,  21 
Verm.  271;  Roou  v.  Murphy,  6  Blackf.  272;  Hallock  v.  Smith,  3  Barb.  267;  Mackreth  v. 
Symmons,  15  Ves.  344;  Hanna  v.  Wilson,  3  Gratt.  243;  FolletC  v.  Ree.'ie,  20  Oliio,  546; 
McKillip  v.  McKillip,  8  Barb.  552;  Young  v.  Wood,  II  B.  Mon.  123  ;  Shelton  v.  Tiffin,  6 
How.  163;  Aldridge  V.  Dunn,  7  Blackf.  249;  Boos  v.  E wing,  17  Oliio,  500;  Kinsley  v. 
William.s.  3  Gratt.  265;  Wat.son  v.  Wiilard.  9  Barr,  89;  Antliony  v.  Smith,  9  Humph  508; 
Vail  V.  Foster.  4  Oomst.  312;  McGlure  v.  Harris,  12  B  Mon.  261;  Russell's,  &c.,  3  Harris, 
319;  Hoggatt  v.  Wade,  10  Sm.  A  M.  143;  Sharp  v.  Kerns,  2  Gratt.  348;  Parker  v  Kelly, 
10  Sm.  &  .\1.  184;  White  v.  Stover,  10  Ala.  441  ;  Grnggs  v.  Bailey,  lb.  341;  Bradford  v. 
Marvin,  2  Flori.  463  ;  Wilder  v.  Smith,  12  B.  Mon.  94 ;  Woods  v.  Bailey,  3  Flori.  41  ;  Kylea 
y.  Tait,  6  Gratt.  44;   Kirksey  v.  Mitchell,  8  Ala.  402. 


CHAP.  XXXIX.]  MORTGAGES  AND  LIENS.  495 

25.  In  Elliolt  v.  EdwanU,{\)  the  lu^lder  of  a  Ica.sc  as.signed  it,  with  a 
proviso  tluit  the  assignee  should  not  transfer,  kc,  until  payment  of  the 
price,  and  took  security  from  a  third  person.  Held,  the  vendor  still 
had  a  lien  for  the  price. 

20.  In  IJufjhts  V.  Kearney, {2)  the  purchaser  gave  his  note  for  the 
pureiia.'^e-nioney,  which  was  put  into  the  hands  of  a  third_  person  as 
trustee,  until  the  incumbrances  upon  the  estate  could  btT  ascertained 
and  paid  oil'  therefrom,  and  the  balance  to  be  paid  to  the  vemlor.  Held, 
the  balance  of  the  purchase-money,  included  in  the  note,  was  a  lieu 
uj)on  the  land  in  the  hands  of  an  heir. 

27.  In  Mackreth  v.  Si/7nrnons,{S)  where  a  bond  was  given  for  the 
purchase-money,  there  was  held  to  be  a  lien.     Lord    Eldon  intimated,, 
that  taking  a  mortgage  upon  another  estate,  as  security,  might  not  be 
a  waiver. 

28.  In  Grant  v.  Milb,{-^)  the  lien  was  held  not  to  be  waived,  by  the 
purchaser's  drawing  bills  upon  himselCand  partner,  obtaining  an  accep- 
tance of  them,  payable  at  a  future  time,  and  delivering  them  to  the 
vendor.  The  bills  were  viewed,  not  as  security,  but  only  as  a  mode  of 
payment.  So,  in  Ex  parte  Peake,{o)  it  was  held,  that  a  bill,  and  in  Ex 
parte  Loarr/ig,{6)  that  a  negotiable  note,  on  time,  which  wi\s  discounted 
and  afterwards  dishonored,  was  no  waiver  of  the  lien.  The  same  point 
was  settled  as  to  a  note  or  bond,  payable  on  time,  in  Sanders  v.  Ledie.{7) 
A  more  recent  case  is  referred  to  in  a  note  of  Simons  &  Stuart,  settling 
the  same  point  as  to  a  bond,  although  in  that  case  there  were  peculiar 
covenants,  and  other  circumstances  which  were  held  to  make  an  excep- 
tion to  the  rule.(8)  But  in  Winte?-  v.  Lord  Anson,{^)  where  the  pur- 
chasi  r  gave  his  bond,  payable  at  the  death  of  the  vendor,  with  interest 
annually,  and  a  receipt  for  the  money  was  indorsed  upon  the  deed; 
held,  the  vendor's  intention  was  evidently  to  part  with  the  estate  im- 
mediutily,  and  t(^  wait  for  the  price,  and  therefore  there  was  no  lien. 

29.  The  American  cases  upon  the  subject  are  said  to  be  uniform, (10) 
with  a  single  exception  in  South  Carolina,(ll)  where  it  was  held,  that  a 
bond  payable  on  time  defeated  the  lien. 

30.  In  Kentucky, (a)  the  general  rule  is  recognized  in  Francis  v. 
Hazier iffj^i^Vl)  and  Cux  v,  Fenivich,{\%)  but  it  is  also  held,  that  if  the  ven- 
dor takes  distinct  and  independent  security,  such  as  the  promise  of  a 
third  person  ;  or  if  other  circumstances  indicate  that  the  vendor  does 
not  rely  upcjn  the  land,  the  lien  is  waived.  The  same  principle  is  re- 
cognized in  Virginia, (14)  and  by  the  Circuit  and  Supreme  Courts  of  the 
United  States ;  and  the  general  rule  by  Chancellor  Kent.(15) 


(1)  3  Bos.  A  p.  181. 

(2)  1  8d).  4  Lef.  132. 

(3)  15  Vi-9.  329. 

(4)  2  Ve.-».  ,t  bea.  30G. 

(5)  1  Mad.  346. 

(6)  2  Uose's  Ciis.  in  Bank.  79. 

(7)  2  Ball  A  Boa.  514. 


(10)  1  Paipe,  29. 

(11)  Representatives,  kc.  v.  Comptroller,  2 
Des.  509. 

(12)  H.ird.  48. 

(13)  3  Bibb,  183. 

(14)  Cole  V.  Scott.  2  \\'a3h.  Ml  ;   'Willson  v. 
Gruliam,  5  Munf.  297. 


(8)  Kx  |)Hrte  Parkes,  1  Glynn  k  Jaino.  228.        (15)  Garson  v.  Green,  1  John.  Cha.  308. 

(9)  1  Sim.  &  6tu.  434.  I 

(a)  So  in  Mis.<'ouri— Marsh  v.  Turner,  4  Misso.  253;  Maryland— 11  Gill  A;  J.  217;  Ton- 
nessee — I'aniph.-ll  v.  Bal-Uvin,  2  Humph.  248;  Oliio — Jaokman  v.  llallnck,  1  Ham.  :!18; 
Patterson  v.  Juhn,  7,  226;  and  Xorili  Carolina — Wynne  v.  Alston,  1  Dev.  410.  See  Burks 
V.  Clirisman,  3  B.  Monr.  50 ;  Portwood  v.  Oulton,  lb.  249 ;  Broadwell  v.  King,  lb.  452. 


49 G  MORTGAGE— EQUITABLE  [CHAP.  XXXIX. 

81.  A  deed  was  made  hy  a  grandfather  to  his  grandson,  in  con- 
sideration of  love  and  affection  and  divers  other  good  considerations, 
and  with  the  purpose  of  disposing  of  the  grandfather's  property  after 
his  death,  and  securing"  a  legacy  to  his  son  ;  and  that  he  in  the  mean- 
time might  retain  control  of  the  land,  so  far  as  to  secure  a  support. 
For  this  purpose,  the  grandfather  took  back  a  life  lease  at  a  nominal 
rent,  and  a  bond  conditioned  (virtually)  that,  whenever  the  grandson 
neglected  to  provide  a  support  for  him,  he  might  resume  possession  or 
claim  rent.  Held,  these  facts  showed  that  the  vendor  did  not  rely  upon 
any  implied  lien,  but  carved  out  his  own  security  for  his  support  by 
a  direct  incumbrance  upon  the  land;  and  this  express  lien  for  a 
part  of  the  consideration  negatived  the  right  of  any  implied  lien  for  the 
residue.(l) 

32.  The  death  of  the  vendee  of  veal  estate  does  not  avoid  the  lien 
for  the  purchase-money.  For  the  heir  cannot  be  permitted  to  hold, 
what  his  ancestor  unconscientiously  obtained.  And,  after  recovering 
a  judgment  at  law  against  the  administrator  of  the  vendee,  upon  a  note 
given  for  the  purchase-monej^ ;  upon  a  deficiency  of  personal  estate, 
the  vendor  may  have  a  decree  in  Chancery  to  have  the  estate  sold. (2) 
It  has  been  contended  that  the  English  law,  enforcing  such  lien  against 
an  heir  of  the  vendee,  could  not  be  regarded  as  applicable,  in  a  State 
where  the  lands  of  one  deceased  are  bound  for  his  debts  in  the  hands 
of  the  heir,  without  any  express  obligation  upon  the  latter.  But  the 
objection  was  considered  by  the  court  as  without  weight.(3) 

33.  It  has  been  already  stated,  (sec.  11,)  that  a  vendor  has  no  lien  upon 
the  land  for  his  purchase-money,  unless  his  object  is  money.  And  he 
must  rely  upon  his  lien  on  the  land,  there  being  no  other  security. 
Hence,  where  a  father  conveyed  to  his  son,  taking  back  a  bond  for  the 
support  of  himself  and  his  wife  for  life,  and  a  lease  of  a  part  of  the 
premises  for  the  same  term  ;  held,  such  lien  did  not  exist.(4) 

34.  A  purchased  land  of  B,  without  paying  for  it,  and  convej'ed  it 
to  C.  C.  gave  back  two  mortgages  to  A  of  equal  date,  for  parts  of 
the  consideration,  intending  that  one  of  them  should  be  assigned  to  B, 
as  security  for  the  purchase-money,  and  have  priority,  according  to  an 
original  agreement  between  A  and  B.  The  mortgages  were  simulta- 
neously recorded  ;  but  the  one  designed  for  B  was  first  assigned  to 
him,  and  afterwards  the  other  was  assigned  to  D,  bona  fide,  and  for  full 
value.  Held,  D  took  his  mortgage,  subject  to  B's  equity  against  A; 
that  the  statute  of  registry  had  no  application  to  this  case,  as  between 
B  and  D  ;  that  A  took  B's  mortgage  as  trustee  for  B  ;  that  the  princi- 
ple, by  which  a  lien  is  waived  by  the  taking  of  collateral  personal  secu- 
rity from  a  third  person,  did  not  apply  here,  because  C  was  in  fact  the 
vendee,  and  the  mortgage  was  upon  the  land  itself;  that  the  implied 
waiver  of  a  lien  (it  seems)  can  be  set  up  only  by  purchasers  without 
notice  ;  and  that  B's  tit'e  should  prevail. (5) 

35.  The  assignee  of  a  vendor  may  enforce  a  lien  upon  the  land  for 
the  purchase-money,  as  well  as  the  vtndor  himself  («) 

(!)  Fish  V.  Howland,  1  Paige,  20. 

(2)  Gar.son  v.  Green,  1  Jolm.   Cha.   308 ; 
Hughes  V.  Kearney,  1  Scb.  &  Lef.  132. 

(3)  Eskridge  v.  McClure,  2  Yerg.  84. 


(4)  Meigs  V.  Dimock,  6  Conn.  458. 

(5)  Stafford  v.  Van  Rensselaer,  9  Cow. 
316;  Van  Rensselaer  v.  Stafford,  1  Uopk. 
569. 


(a)  So  the  sureties  of  the  vendee  for  the  purchase-money,  may  sometimes  have  the  benefit 


CHAP.  XXXIX.J  MORTGAGES  AND  LIKNS.  497 

3f).  A  convcj^cil  to  B,  who  paid  ."^1,000,  ami  gave  a  bond  for  $2,000, 
payable  in  two  years,  and  contaiiiin<;  a  nieinorantluin,  below  th'j  seal, 
that  the  land  sliould  be  liable  for  lhe.S'2,()00,  till  paid.  A  assigned  the 
bond  to  C,  but,  a  few  days  previously,  B  conveyed  the  land  to  D,  who 
had  loaned  him  $1,200,  taking  back  a  bond  of  defeasance,  D  had  notice 
of  the  bond  from  B  to  A,  and  of  its  indorsement.  C  brings  a  bdl  ia 
equit}'  against  B  and  D,  praying  a  sale  of  the  land.  Ileld;t),  as  an  a.s- 
signee  with  notice,  was  chargeable  with  the  lien  ;  and,  on  a  similar  i»rin- 
ciple,  C,  as  an  assignee  of  A,  should  have  the  benefit  of  it ;  that  an 
equitable  hen  was  assignable,  as  well  as  a  legal  mortgage.  Decreed, 
that  C  should  recover  the  amount  due,  or,  if  not  paid  in  a  certain  time, 
the  land  to  be  sold.(l) 

37.  It  has  been  doubted,  whether  creditors  of  a  vendee,  acquiring  his 
land,  shall,  like  purc/iasers  without  notice,  hold  it  discharged  from  the 
equitable  lien  of  the  vendor  for  the  purchase-money.  But  tlie  Sui)rcme 
Court  of  the  United  States  have  decided,  that  as  against  creditors,  as 
well  as  purchasers,  the  lieu  does  not  exist,  more  especially  where  tliey 
hold  under  a  mortgage. 

38.  In  1792,  A  })urchased  land  from  B,  and  sold  it  to  C,  who  took 
his  title  from  B.  C  gave  A  a  bond  for  the  price,  which,  in  March,  1796, 
was  surrendered,  upon  his  accepting  bills  for  the  amount,  some  of  which 
were  never  paid.  In  September,  1796,  C  conveyed  the  land,  with  other 
lands,  to  D,  in  trust  for  E,  who  was  a  surety  for  C  to  a  large  amount, 
and  also  to  secure  him  for  future  advances  and  liabilities.  In  March, 
1797,  D  conveyed  the  land  to  F,  in  trust,  for  the  purposes  mentioned 
in  the  deed  from  C  to  D.  In  June,  1797,  C  (with  two  others)  conveyed 
the  land,  together  with  other  lands,  to  F,  for  the  payment  of  their  debts. 
Some  doubt  having  arisen  respecting  the  registration  of  these  deeds,  F 
brought  a  suit  against  C,  and  recovered  judgment,  and  the  land  was 
bought  upon  execution  for  them,  and  afterwards  conveyed  to  them 
upon  the  former  trusts.  Both  A  and  C  had  oecome  insolvent,  and  had 
bi-en  discharged  under  the  bankrupt  or  insolvent  laws.  A,  and  a  trus- 
tee for  the  creditors  of  A,  bring  a  bill  in  equity  against  C  and  F,  to 
subject  the  land  to  payment  of  the  original  purchase-money.  F  alleges 
that  he  had  contracted  to  sell  the  land  to  C,  but,  as  he  had  not  paid  the 
price,  he  (F)  still  retained  the  legal  title.  Held,  tliat  the  lien  of  the 
plaintitf  sliould  not  prevail,  against  the  claim  of  F  on  behalf  of  credi- 
tors. Chief  Justice  Marshall  remarks,  that,  whether  the  lien  of  the  ven- 
dor be  established  as  a  natural  equiti/,  or  from  analogy  to  the  principle, 
that  a  bartjaiiior  holds  in  trust  lor  the  bargainee,  till  payment  of  the 
price;  still  it  is  a  secret,  invisible  trust.  The  vendee  appears  to  hold, 
divested  of  any  trust;  and  gains  credit,  upon  the  confitlence  that  he  is 
the  owner  in  equity  as  well  as  at  law.  A  vendor  ought  to  take  a  mort- 
gage, for  the  purpose  of  general  notice;  otherwise,  he  is  in  some  de- 
gree accessory  to  a  fraud.  It  would  seem  inconsistent  with  the  princi- 
ples of  equity,  and  with  the  general  spirit  of  our  laws,  that  such  a  lien 

(1)  Eskridge  v.  McClure,  2  Yerg.  84. 

of  such  lien.  Kleiser  v.  Scott,  6  Dnna,  137  ;  Burks  v.  Chrisman,  3  B.  Monr.  50;  Harter  y. 
"VVekli,  4  244.  Bui  seo  Foster  v.  Trustees,  &c.,  3  Alab.  (N.  S.)  302.  So  wliere:in  adminis- 
traliir  puri.ha.se8  land  sold  by  hiinailf,  the  parlies  beneficially  interested  Lave  a  liea  for  tbe 
purchase-money.     Baines  v.  McGee,  1  Sui.  &  M.  208, 

Vol.  I.  32 


598  MORTGAGE— EQUITABLE  [CHAP.  XXXIX 

should  be  set  up  in  a  court  of  chancery,  to  the  exclusion  of  bona  fide 
creditors.  In  the  United  States,  the  claims  of  creditors  stand  on  high 
ground.  There  is  not,  perhaps,  a  State  in  the  Union,  the  laws  of  which 
do  not  make  all  couvej-ances  not  recorded,  and  all  secret  trusts,  void,  as 
to  creditors,  as  well  as  subsequent  purchasers  without  notice.  To  sup- 
port the  secret  lien  of  the  vendor  against  a  creditor,  who  is  a  mortgagee, 
would  be  to  counteract  the  spirit  of  these  laws.  Judge  Marshall  ex- 
amines the  conflicting  English  decisions  upon  this  subject,  and  also  the 
observations  of  Mr.  Sugden,  which  seem  to  favor  an  opinion  contrary 
to  the  judgment  in  this  case  ;  and  he  draws  a  distinction  between  an 
assignment  made  under  a  bankrupt  or  insolvent  law,  which  is  not  re- 
garded ;!S  made  for  valuable  consideration,  but  merely  places  the  as- 
signee in  precisely  the  same  situation  with  the  assignor ;  and  a  convey- 
ance made  by  the  mere  act  of  the  party,  for  the  security  of  one  or  more 
creditors,  or  of  creditors  generally. (1) 

39.  Whether,  if  A  sells  an  estate  to  B,  which  A  purchased  from  C, 
but  B  takes  his  title  directly  from  C,  A  can  enforce  an  equitable  lien 
upon  the  land,  never  having  had  a  legal  title,  qu.(^) 

40.  In  Indiana,  it  would  seem,  a  valid  title  to  real  estate  may  pass  by 
mere  agreement,  accompanied  with  delivery  of  possession.  But,  in  case 
of  such  agreement,  the  vendor  may  reserve  an  express  lien  upon  the 
property,  for  pa3'ment  of  the  purchase-money. 

41. A  agreed  with  B,  by  a  sealed  instrument,  to  sell  B  certain  land 
and  a  steam-engine,  the  price  to  be  paid  in  three  years ;  B  to  have  im- 
mediate possession  of  the  land,  and,  after  erecting  a  mill-house,  to  have 
the  engine  also,  which  was  to  remain  on  the  land  till  payment  of  the 
purchase-money,  when  a  title  was  to  be  made.  B  took  possession  of 
the  land,  built  the  house,  and  put  the  engine  in  operation.  In  Septarn- 
ber,  1821,  A  assigned  the  agreement  to  C,  and  in  Julj^  1824,  Cassiged 
it  to  D.  In  March,  1823,  a  judgment  was  recovered  against  A,  and  the 
land  sold  on  execution.  D  brings  a  bill  in  equity  against  the  execution 
purchaser,  claiming  a  lien  upon,  and  praying  a  sale  of  the  property,  to 
satisfy  the  claim  for  the  purchase-money;  Held,  the  doctrine  of  im2)Ued 
lien  was  inapplicable  to  this  case  ;  that  the  agreement  not  to  remove 
the  engine  gave  an  express  lien  upon  it,  and  the  express  covenant,  that 
the  title  should  n^main  in  A  till  the  price  was  paid,  created  a  lien  upon 
the  land;  that  the  lien  was  assignable,  and,  after  the  assignment  to  C 
there  remained  in  A  only  the  bare  legal  title,  which  he  held  in  trust 
for  the  purposes  of  the  contract ;  and  that  the  execution  purchaser,  hav- 
ing notice,  took  the  estate,  subject  to  the  same  trust.  Sale  decreed, 
with  an  injunction  to  the  persons  in  possession,  &c.(3)(a) 
42.  In  Pennsylvania,(4)   where  a  writing  had  been  executed,  con- 

(1)  Bayley  v.  Greenleaf,  7  Wheat.  46;  ace. ;  626;   Badtiam  v.  Cox,  11  Ired.  456;  Greeu«- 
Roberts  v.  Rose.  2  Humph.  145  ;   Roberts  v.    Demoss,  10  Humph.  371 ;  Fa  well    v.  Heelis, 
S  lisbury,  3  Gill  &  J.  425;  Gann  v.  Chester,  !  Ambl.    724;  Chapman    v.   Tanner,    1    Vern. 
5  Yerg.  205 :  4  Kent,  154,  n. ;  coritra,  Twel-  j  267  :  Dwight  v.  Newell,  3  Comst.  185;  Kline 
Tes  V.  Williams,  3  Whart.  493  ;  Shirley  v.  Su-    v.  Lewis,  1  Ashm.  31. 
gar,  &c.,  2  Edw.  511.     See  Hoagland  v.  La- 1      (2)  Bayley  v.  Greenleaf;  7  Wheat.  60. 
tourette,  1   Green,  254;    Aldridge  v.  Dunn,  7  I      (3)  Lagow  t;.  Badollet,  1  Blackf.  416. 
Blaekf.  249;  Taylor  v.    Baldwiii,    10   Barb.  1      (4)  Stoufifer  t;.  Coleman,  1  Yeates,  393. 

(a)  Since  held,  in  the  same  State,  that  the  vendor  retains  an  equitable  lien  on  the  land  for 
the  price  (unless  he  voluntarily  parts  with  it,)  against  the  vendee  and  subsequent  purdiasers 
witli  notice.     Deibler  v.  Berwick,  4  BJackf.  339. 


CHAP.  XXXIX.] 


MORTGAGES  AND  LIENS. 


499 


veying  by  words  of  actual  grant,  but  calleJ  an  article  of  ayreemod,  and 
looking  to  a  future  conveyance,  there  being  a  covenant  to  convey  after- 
wards bv  good  and  sullicient  deed;  Chief  Justice  McKcan  stated  the 
qucstiorf  as  being,  whether  the  })arty  did  sell  and  convci/,  or  oidy  wjrceto 
do  it;  and  theia,  suggested  the  I'urther  doubt,  whether  the  taking  of  a 
bond  for  the  price  was  not  a  waiver  of  the  licn.(«)  lu  a  subsiqnent 
case,(l)  however,  the  court  remark,  that  the  doctrine  o!-«iuitable  lien 
could  not  apply,  in  that  case,  because  the  hgid  title  still  remained  in  the 
proposed  vendor.  In  the  same  case,  the  English  doctrine  upon  the 
subject  is  rejected,  as  having  being  first  introduced  in  England,  three 
years  after  the  charter  to  William  Penn  ;  as  impracticable  in  a  State, 
having  no  court  with  full  equity  powers;  as  being  alike  opposed  to  the 
general  understanding  and  practice  of  the  people,  and  to  the  universal 
policy  of  the  law  in  regard  to  the  registration  of  deeds,  the  liens  of 
mechanics,  judgment  creditors,  creditors  of  deceased  persons,  &c. ;  and 
as  leading  to  the  utmost  confusion  and  uncertainty  of  titles.  It  is  said, 
thatoulv  two  cases  in  Pennsylvania  have  ever  recognized  the  doctrine 
in  question  ;  one  of  them  being  that  already  referred  to  ;  and  the  other, 
Irvine  v.  Oanipbell,(2)  being  also  a  case  of  the  purchase  of  a  mere 
equitable  title,  inasmuch  as  the  instrument  was  in  the  form  of  an  exe- 
cutory agreement,  and  contained  a  covenant  for  further  assurance. 

43.  In  ^[aryland,  it  has  been  held,  that,  where  a  vendee  gave  a  bond 
for  the  i)rice,  taking  a  bond  for  a  deed,  and  left  the  State,  after  selling 
to  a  third  person,  with  notice  that  a  part  of  the  price  was  unpaid  ;  the 
first  vendor  might  enforce  a  lien. (3) 

44.  In  the  same  State,  where  a  creditor  of  one  deceased  has  a  claim 
for  the  price  of  land  conveyed  to  him,  and  makes  application  to  have 
the  land  sold  for  payment  of  debts;  the  land  in  qut-stion  shall  be  first 
disposed  of  (4) 

45.  A  lien,  similar  to  that  just  described,  is  the  lien  of  a  purchaser 
of  land,  who  has  paid  the  purchase-money  prematurely  or  by  surprise, 
that  is,  before  receiving  a  conveyance.  This  right,  however,  has 
been  asserted  in  very  few  cases,  and  the  existence  of  it  seriously 
quesiioned.(5)(i) 


(1)  Kauflett  V.  Bower,  7  Ser.  &  R.  64;  ace. 
Green  v.  Crockett,  2  Dev.  k  B.  393. 
(2)6  Bin.  118. 


(.3)  Wright  V.  Woodland,  10  G.  &  J.  387. 

(4)  Spencer  ».  Pearce,  10  Gill  &  J.  294. 

(5)  2  Story,  463,  n. 


(a)  It  has  been  since  held,  that,  in  case  of  an  actual  conveyance  and  a  bond  for  the  price, 
ejectment  will  not  lie  to  compel  payment.  Megargel  v.  Saul,  3  Whart.  19.  But,  if  the  deed 
provide  that  the  land  sliall  be  subject  to  the  condition  of  sale,  viz.,  a  lien  in  favor  of  the 
vendor ;  upon  an  execution  sale  of  the  property,  as  the  purchaser's,  the  vendor  has  a 
claim  upon  tiie  proceeds,  prior  to  that  of  the  judgment  creditors  of  the  vendee.  Barnilz  v. 
Smith,  1  W.  &  Serg.  142. 

(b)  It  has  bepn  held  in  Kentucky,  that,  wliere  an  execution  sale  is  void,  the  purcli.iHer  still 
has  a  hen  tipou  tlio  land  for  the  purchusc-raoncy,  because  it  has  gone  to  the  debtor's  use ; 
and  Chancery  will  restrain  n  suit  for  the  land  by  injunction,  till  it  Is  paid.  Shepherd  v. 
Melntire,  5  Dana,  576.  See  Christopher  v.  Blackford,  1  B.  Monr.  197  ;  Burgess  v.  Wheate, 
1  W.  Bl.  150;  Sugd.  25S:  Mackreth  v.  Symmons.  16  Ves.  345;  Oxenham  v.  Esdaile,  3  T. 
&  J.  264;  Ludlow  v.  Grayall,  11  Price,  5S;  Finch  v.  Winchelsca,  1  P.  Wms.  2S4 ;  Snail 
v.  Attwood,  1  Younge,  507  ;  Rockwell  v.  Hobby,  2  Sandf.  Cha.  9 ;  Blackburu  v.  Penning- 
ton, 8  B.  Moo.  217. 


500  LIEN  OF  MECHAKICS,  ETC.  [CHAP.  XL. 

CHAPTER    XL. 

LIEN  OF  MECHANICS,  ETC.,  FOR  LABOR  AND  MATERIALS. 


1.  Lien  Viy  legal  process. 

2.  Lien  of  meclianics,  &c. 

3.  Massachusetts. 

4.  Connecticut. 

5.  New  Hampshire. 

6.  Rhode  Island. 
1.  Maine. 

8.  Pennsylvania. 

9.  Oiiio. 
10.  Indiana. 


n.  Illinois. 

12.  Missouri. 

13.  Tennessee. 

14.  Kentucky. 

15.  Micliigan. 

16.  Arkansas. 

17.  Missi-ssippi. 

18.  Georgia. 

19.  Alabama. 


1.  Under  the  general  title  of  estates  on  co7iditio7i,  and  in  immediate 
connection  with  the  subject  of  mortgages^  may  properly  be  considered 
certain  other  Uens^  which  one  man  may  acquire  upon  the  land  of 
another  as  security  for  a  debt.  Of  these,  perhaps  the  most  important 
is  the  lien  acquired  by  means  of  legal  process — consisting  either  in  an 
attacliment^  made  at  the  commencement  of  a  suit,  or  in  a  judgment  or 
execution^  in  which  the  suit  terminates.  These,  however,  will  be  con- 
sidered in  another  portion  of  this  work,  relating  to  the  methods  of  ac- 
quiring title  to  real  property. 

2.  There  is  another  species  of  lien,  unknown  to  the  common  law, 
and  originated  of  late  years  by  express  statutes  in  many  of  the  Stat.es  ; 
viz.,  the  lien  of  mechanics  and  material-men  or  furnishers  of  materials, 
upon  the  buildings  which  they  erect  or  provide  for.  There  is  a  gene- 
ral similarity  in  the  laws  of  those  States  which  have  legislated  upon 
this  subject,  but  it  may  be  worth  while  briefly  to  state  their  respective 
specific  provisions.(a) 

3.  In  Massachu setts, (1)  any  person  furnishing  labor  or  materials,  by 
contract  with  the  owner  of  land,  for  erecting  or  repairing  any  building 
thereupon,  may  acquire  a  lien  upon  the  same.  The  contract  must  be 
written,  signed  by  or  for  the  owner  of  the  land,  and  recorded. (i)  The 
lien  continues  only  six  months  after  the  money  is  finally  payable,  unless 
during  that  time  a  suit  has  been  brought.  When  any  sum  remains 
unpaid  sixty  days  after  it  is  due  by  the  contract,  the  creditor  may  by 
petition  obtain  a  decree  for  a  sale  of  the  land.  The  petition  may  be 
filed  in  court,  or  in  the  clerk's  office.  It  shall  contain  a  brief  statement 
of  the  contract,  and  the  sum  due,  and  a  description  of  the  land.  The 
court  shall  order  notice  to  the  debtor,  and  to  all  others  holding 
similar  liens  upon  the  land.  The  owner  may  contest  any  or  all  the 
claims,  and  the  several  claimants  may  contest  those  of  each  other.  '  The 
court  shall  allow  the  several  demands,  whether  immediately  payable 
or  not,  if  not  conditional  ;  with  a  relate  of  interest  if  payable  at  a  fu- 

(1)  Ma,ss.  Rev.  St.  684-9;  Sts.   1851,  849. 

(a)  It  is  said,  rules,  both  of  law  and  equity,  are  applicable  to  a  proceeding  to  enforce  a 
meclianic's  lien.  Greenouirh  v.  Wigginton.  2  Greene,  435.  But  whether  equity  can  inter- 
fere in  tliis  class  of  cases,  see  Coteman  v.  Freeman,  3  Kelly,  137. 

(b>  The  lien  in  question  may  exist,  tliongh  the  contract  be  not  recorded  till  after  tlie  death 
of  the  owner  of  the  land.  Foster,  &c.,  20  Pick.  542.  Tha  registry  of  a  lieu  is  not  a  record. 
Davis  V.  Cliurcli,  1  W.  &  S.  24. 


CHAP.  XL] 


LIEN  OF  MECITANICS,  ETC. 


501 


turc  time.  If  the  creditor  has  been  ])reventecl  from  an  entire  perform- 
ance, without  his  own  default,  by  tlu;  failure  of  the  debtor  to  perlbnn, 
the  former  shall  recover  a  proportional  part  of  the  amount  contracted 
for.  If  either  of  the  creditors  establishes  his  lien,  the  court  orders  a 
sale  by  an  oflicer  of  the  whole  land,  or  such  part  as  will  satisfy  the 
claims,  if  for  the  interest  of  the  parties.  The  mode  of  selling  and  the 
right  of  redemption  are  the  same  as  in  case  of  the  salcrCTf  equities  of 
redemption.  The  officer  may  be  onlered  to  make  distribution  of  the 
proceeds,  or,  if  the  claims  are  not  all  ascertained  at  the  lime  of  sale,  to 
bring  the  money  into  court ;  and,  if  eircunistanees  so  require,  the  court 
may  make  several  orders  of  distribution.  I'he  surplus  proceeds  are 
paid  over  to  the  debtor,  but  are  liable  to  attachment  or  execution  be- 
fore such  payment.  Where  the  property,  has  been  attached  before  the 
contract  was  recorded,  the  attachment  shall  be  a  prior  lien  upon  the  value 
of  the  propertv  as  it  was  when  attached ;  and  the  creditor,  having  recov- 
ered judgment,  shall  be  paid  the  proportion  due  him  accoixling  to  this  es- 
timate. If  the  attachment  is  subsequent  to  the  recording,  the  latter  has 
the  same  priority  as  any  attachment  would  have.  Attachments  are 
paid  according  to  priority;  but,  when  lien  creditors  have  equal  rights 
among  themselves,  and  the  fund  is  insufficient  to  pay  the  whole,  they 
are  paid  proportionally.  The  lien  shall  attach  to  estates  less  than  a 
fee,  and  to  equities  of  redemption,  if  the  employer  has  these  interests 
in  the  land.  If  the  employer  die,  or  convey  away  his  estate,  his  heirs 
or  assignee  may  be  made  parties  to  the  suit.  If  he  die  after  suit  brought, 
it  may  proceed  against  his  heirs  or  assigns.  If  the  creditor  die  belbre 
or  alter  suit  brought,  it  may  be  commenced  or  prosecuted  by  his  exe- 
cutor, &c.  If  the  petitioning  creditor  fail  in  his  suit,  other  creditors, 
made  parties,  may  still  recover.  If  the  former  commence  the  suit  witliin 
the  sixty  days,  but  other  creditors  prosecute  it,  he  may  still  recover, 
but  shall  have  no  costs,  and  may  be  required'to  pay  them.  These  pro- 
visions are  no  bar  to  a  common  law  remedy  for  the  debt.  After  payment, 
satisfaction  shall  be  entered  or  a  release  given,  as  of  mortgages.  By  a 
subsequent  act,  any  person  working  upon  a  building,  under  a  contract 
willi  the  owner,  or  with  one  who  has  contracted  with  the  owner  for  the 
erection,  &c.,  or  the  purchase  of  the  land  to  build  upon,  shall  have  a 
lien  for  his  personal  wages.  He  must,  within  sixty  days  after  doing 
the  work,  file  in  the  registry  of  deeds  a  true  account  of  his  claim,  and 
description  of  the  prop^-rty,  subscribed  and  sworn  to,  and  sue  in  seventy 
days  from  the  doing  of  the  work.  By  St,  1852,  ST-l,  the  privilege  is 
extended  to  one  furnishing  labor  and  materials  to  the  owner  or  other 
part}'  authorized  to  contract  therefor.  In  case  of  materials,  written 
notice  must  be  given  of  the  })roposed  lien,  before  furnishing  them. 
Diflferent  laborers  may  join  in  one  petition. 

4.  In  Connecticut,(l)  where  a  person  performs  labor,  or  furnishes 
materials,  in  the  erecting  or  repairing  of  a  building,  to  the  value  of 
more  than  two  hundred  dollars,  he  shall  have  a  lien  upon  the  land  and 
building,  paramount  to  any  other  lien  wieh  is  acquired  subsequently  to 
the  commencement  of  such  services.     Upon  this  lien,  the  property  is 


(1)  Conn.  St.  18.1G,  22;  Conn.  L  18.37,  38; 
Si.  of  Conn.  402-.3;  lb.  1839,  31-2.  See 
Bank,  .^c.  v.  Curtiss,  18  Conn.  H42.  By  Sta. 
1852.  there  is  a  lien  on  buildinga  for  their 
construction,  erection   or  repairs,  if  the  ma- 


terials or  services  exceed  $25.  It  takes 
precedence  of  liens  arising:  after  the  com- 
mencement of  the  services,  and  is  to  be  fore- 
clo.sed  as  a  mortgairi\  A  certiQcato  shall  bo 
filed  withiu  sixty  days  with  the  town  clerk. 


502  LIEN  OF  MECHANICS,  ETC.  [CHAP.  XL. 

subject  to  foreclosure^  as  on  a  mortgage.  Tlie  lien  of  any  claimant  con- 
tinues only  sixty  days  after  the  completion  of  bis  work,  unless  be  lodge 
with  the  town  clerk  a  written  notice  or  certificate,  describing  the  prem- 
ises and  the  amount  claimed,  which  shall  be  SAvorn  to  and  recorded. 
After  satisfaction  of  the  lien,  or  a  judgment  that  nothing  is  due,  the 
claimant,  on  request  of  any  party  interested,  shall  file  a  certificate  of 
such  fact,  whicb  shall  be  recorded,  and  operate  as  a  discharge.  For  a 
neglect  to  file  such  certificate  in  ten  days,  he  forfeits  a  sura  not  exceed- 
ing one-half  of  the  debt  claimed.  Any  sub-contractor,  having  a  claim 
exceeding  $50,  and  a  written  agreement  with  his  employer,  and  the 
Avritten  assent  of  the  owner,  may  acquire  a  lieu  by  recording  his  con- 
tract within  sixty  days,  (as  above,)  but  not  beyond  the  amount  due 
from  the  owner.  If  several  thus  acc[uire  a  lien,  for  an  amount  ex- 
ceeding that  due  from  the  owner;  they  shall  be  paid  proportionally. 
If  the  employer  is  insolvent,  the  owner  is  required,  upon  notice  of  the 
lien,  to  withhold  the  money  from  him.  The  lien  in  question  is  made  a 
subject  of  chancer}^  jurisdiction. 

5.  In  New  Hampshire,  a  lien  is  acquired,  b}^  recording  a  written 
contract  with  the  town  clerk,  where  the  property  lies,  within  thirty 
days  after  the  claim  is  due.  An  attachment  is  afterwards  made  upon 
legal  process,  and  relates  to  the  time  of  recording,  subject  to  prior  in- 
cumbrances. If  the  owner  fails  to  perform  in  full,  and  in  consequence 
the  creditor  does  the  same,  lie  has  a  lien  pro  tanio.{l) 

6.  In  Rhode  Island,  mechanics  and  material-men  may  have  a  lien 
upon  buildings,  canals,  turnpikes  and  railroads,  and  the  land  over 
which  they  are  constructed.  If  the  party  claiming  a  lien  is  a  sub-con- 
tractor^ he  must  notify  the  proprietors  that  he  has  been  employed, 
within  thirty  days  from  the  time  of  being  thus  employed,  and  that  he 
claims  a  lien.  The  lien  continues  four  months  from  the  time  when  the 
last  payment  falls  due.  In  three  months  from  completion  of  the  work, 
an  account  shall  be  filed  in  the  office  of  the  town  or  city  clerk.  Oth- 
erwise, there  shall  be  a  lien  only  against  the  employer.  The  remedy 
is  a  suit  for  sale  of  the  property.  But  this  is  subject  to  the  claim 
of  any  prior  attaching  creditor,  upon  the  value  of  the  property  as  it 
was  at  tlie  time  of  his  attachment.  Notice  is  given  to  all  lien  creditors, 
and  all  recover  their  claims,  and  may  contest  those  of  each  other.  If 
the  whole  services  have  not  been  rendered,  without  fault  of  the  creditor, 
lie  has  a  claim  for  a  part.  A  tenant  shall  have  no  lien  for  repairs  of 
the  demised  premises,  unless  assented  to  by  the  landlord. (2) 

7.  In  Maine,(3)  a  person  agreeing,  in  writing,  to  erect,  repair,  or 
alter  a  building,  or  to  furnish  labor  or  materials  therefor,  may  acquire 
a  lien  upon  the  house  and  land,  or  the  equity  of  redemption  therein. 
Within  ninety  days  from  the  time  stipulated  for  payment,  the  lien 
shall  be  secured  by  attachment,  and  shall  have  precedence  of  all  other 
attachments.  The  contract  must  have  been  recorded,  within  ten  days 
from  the  making,  in  the  office  of  the  town  clerk.  A  tender  of  the  sum 
due  discharges  the  land.  Where  one  hires  a  lot  or  mill-privilege  for 
the  purpose  of  ei'ccting  a  building  thereon;  an  attachment,  within  six 
months  from  the  time  the  mechanic's  claim  is  due,  gives  a  prior  lien 
upon  the  tenant's  interest  in  the  laud  and  upon  the  building. 

(1)  Rev.  St.  250.  I      (3)  Maine  St.    1837,   418-19.     Conner  v. 

(2)  R.  I.  St.  1834,  829  ;  lb.  1836,  939.       |  Lewis,  4  Shepl.  268;   Rev.  St.  559. 


CHAP.  XL.] 


LIEN  OF  MECriANICS,  ETC. 


503 


8.  In  Pennsylvania,  mechanics  and  rnaterial-nien,(a)  including  those 
who  furnish  curbstone  for  pavement,  have  a  lien  from  tlic  commence- 
ment of  the  building.  It  continues  only  two  years  therefrom,  unless  in 
six  months  from  the  performance  of  the  work,  kc,  a  suit  is  brought, 
or  claim  filed  with  the  prothonotary  of  the  county.(i)  And  satisiac- 
tion,  when  made,  shall  be  entered  upon  the  record,  und.-r  pc^ialty  of 
one  half  the  sum  sued  for  or  claimed  by  the  creditor.  'I^re  suit  may 
be  a  personal  action,  or  a  writ  of  saVe  facias.  In  the  latter,  the  build- 
ing itself  is  alone  liable.  The  statutes  are  limited  in  their  operation  to 
certain  enumerated  towns,  cities  and  counties  ;  and  bind  only  the  estate 
of  the  contracting  party. (1) 

9.  In  Ohio,  anv  person  furnishing  labor  or  material.''  for  building  has 
a  lien,  by  making  out  an  account  within  four  months  from  the  date  of 
his  claim,  whiehls  to  be  sworn  to  and  registered  in  the  olBco  of  the 
countv  recorder.  The  lien  continues  two  years  from  commencement 
of  the  work,  ko.  If  there  was  a  written  contract,  it  must  also  be  filed. 
In  ca.'^e  of  a.suit  and  judgment  upon  the  account,  the  lien  continues  till 
it  is  terminated.  If  the  owner  lias  a  mere  equitable  title,  the  court 
may  order  a  lease  of  the  property  to  satisfy  the  liens.  So  where  the 
officer  fails  to  sell  on  execution.  The  lien  may  be  discharged,  like  a 
mortgage,  on  the  record.(2) 

lOr  In  Indiana,  mechanics,  &c.,  have  such  lien,  jointly  or  severally, 
for  any  amount  over  thirty  dollars.  The  remedy  is  a  bill  in  Chancery, 
commenced  in  one  year  from  the  furnishing  of  materials  or  completion 
of  the  work.  All  may  join  in  such  bill,  or  one  may  file  a  bill  alone 
against  the  others  and  the  employer.  The  property  shall  be  sold,  and 
the  proceeds  proportionably  distributed.  But  the  lien  may  be  dis- 
charged by  the  filing  of  a  bond.  The  act  applies  only  to  new  erections, 
or  contracts  for  repairs  made  with  the  owner^  not  those   made  with  a 


(1)  Purd.  Di)?.  595-G-7.  See  Bickel  v. 
James,  7  "Watts,  9;  Wiiller  v.  Stropper,  2- 
Miles,  348;  Keppel  v.  Jackson,  3  Watts  A;  S 
320;  Lepman  r.  Thomas,  5,  262;  Pentlaud 


V.  Kelly,  6,  483;  Sts.  18-it,  140,  665;  1843, 
857;  1842,  66,  22,  197,  464,  213;  1840, 
412. 

(2)  St.  1841,  6G-70. 


(a)  A.  joumerraan  is  not  entitled  to  a  lien.  Jobsen  v.  Boden,  8  Barr,  463.  But  the 
wnnl  employd  (in  furnishing  materials,  Ac.,)  does  not  menn  one  who  follows  the  supplying 
of  such  materials  fts  a  regular  business,  but  applies  to  any  one  who  actually  supplies  theiu. 
Savoy  V.  Jone."*,  2   Rawie,  343. 

Wiicre  a  building  contract  provides,  that  the  contractor  shall  give  security  in  $500  that 
no  liens  shall  be  entered  on  the  houses,  a  lien  filed  by  the  contractor  himself  is  nevertheless 
yalid  ;  the  provi-sion  applying  only  to  liens  of  other  persona  and  sub-contractors.  Young  y. 
Lyman,  9  Barr,  449. 

Where  several  mechanics  file  liens  against  the  s;!rne  buildings,  a  shcrilT's  sale  upon  one  of 
them  defeats  and  discharges  all  the  others,  and  the  purchaser  takes  a  clear  title.  The 
proceeds  of  aalo  are  rateably  divided  among  the  whole.  Anshutz  v.  McClelland,  6 
Watt*,  487. 

A  VAK'^  facias,  being  in  rem,  does  not  lie  after  a  judicial  sale  of  the  property.     lb. 

Where  a  mechanic,  &c.,  has  ngr-ed  witli  a  buiMcr  or  architect  to  furnish  labor  or  ma- 
terials for  the  building  of  a  third  person,  such  builder,  4c.,  must  be  made  a  party.  Barnes 
V.  Wright,  2  Miles,  193. 

Where  one  specially  contracts  to  furnis|j  all  materials  and  erect  a  building  for  a  certain 
sum,  it  has  been  held,  that  he  cannot  rec<iver  a  balance  due  upon  its  completion  by  tiling  a 
claim  under  the  lien  law.     Iloatz  v.  Patterson,  6  Watts  &  S.  5:i7. 

(I>)  Wiiere  materials  were  furni.shed  Jan.  22d,  and  the  claim  filed  July  23d  ;  held,  this  was 
too  late  to  secure  a  lion.     IIoops  v.  Parsons,  2  Miles,  241. 


504  LIEN  OF  MECHANICS,  ETC.  [CHAP.  XL 

mere  tenant.    Notice  shall  be  filed  and  recorded  in  a  public  office,  within 
sixty  days  from  the  time  when  the  debt  becomes  due.(l)(a) 

11,  In  Illinois,  a  lien  is  given  to  any  one  who  contracts  with  the 
owner  of  land  to  erect  or  repair  a  building  or  machinery,  or  to  furnish 
labor  or  materials;  also  to  any  one  who  supplies  materials  which  are 
used  for  this  purpose,  A  suit  shall  be  brought  within  three  months 
from  the  time  fixed  for  payment,  and  execution  issue  against  the  pro- 
perty only.  The  time  ot  completing  is  not  to  go  more  than  three  years, 
or  of  payment  more  than  one  year,  beyond  the  time  stipulated  for  com- 
pletion, A  suit  is  brought  to  enforce  the  right,  to  which  all  persons 
interested  may  become  parties.  No  priority  of  title  arises  from  priority 
of  contract.  Each  creditor's  share  shall  be  ascertained  ;  and,  if  practi- 
cable, such  part  only  sold  as  will  satisfy  the  liens.  The  act  applies  to 
owners  of  limited  or  incumbered  estates,  as  well  as  those  in  fee;  and 
embraces  the  executors,  &c,,  of  both  parties.  No  incumbrance,  either 
prior  or  subsequent,  shall  have  priority,  with  regard  to  the  building  or 
materials,  over  the  claim  of  the  person  who  erected  or  supplied  them; 
and  no  lien  shall  continue  in  force,  as  against  a  creditor  or  incumbrancer, 
more  than  six  months  from  the  last  payment,  unless  a  suit  bp  com- 
menced.(2)(i) 

12.  In  Missouri,  artizans,  builders,  mechanics  and  laborers,  doing 
labor  or  furnishino;  materials  for  a  building,  under  a  contract  with  the 
proprietor,  shall  have  a  lien  upon  such  materials  and  work,  each  for 
his  own,  A  sworn  account  shall  be  filed  with  the  clerk  of  the  court, 
within  six  months  from  the  time  when  the  debt  fialls  due,  and  by  him 
recorded.  The  account  shall  contain  a  description  of  the  property,  A 
suit  may  be  brought  within  twelve  months  from  completion  of  the  work; 
either  in  common  form,  in  which  case  execution  shall  issue  against  the 
property  in  question,  only  to  the  amount  of  the  plaintiff's  proportional 
lien,  if  the  defendant  was  owner  or  possessor  of  the  property  at  the 

(1)  Ind.  St.  1834,  165-7.  I  50.     See   Log.in  v.   Dunlap,   3   Scam.    189; 

(2)  lUin.  Rev,  L.  447;  St.  1839-40,   147-  |  Delahay  v.  Clement,  3,  203. 

(a)  Workmen  upon  a  building  may,  by  giving  notice  to  the  owner,  hold  him  liable  for 
any  amount  due  at  that  time  to  their  employer — the  latter  being  indebted  to  them.  Rev. 
St.  412-13. 

A  bill  must  be  Qled  within  a  year  from  the  time  of  furnishing  the  materials.  Close  v. 
Hunt,  8  Blackf.  254. 

The  party  must  file  in  the  recorder's  oflBce  of  the  proper  county,  within  sixty  days 
after  the  debt  became  due,  a  notice  of  his  intention  to  hold  the  lien.  Pifer  v.  Ward,  8 
Blaekf  252, 

(h)  The  work  must  be  done  or  the  materials  furnished  before  such  lien  can  attach,  and  the 
petition  must  make  judgment  creditors  parties,  in  order  to  defeat  their  rights.  McLagan  v. 
Brown,  11  111.  519. 

Only  those  who  furnish  labor  or  materials,  by  contract  with  the  owner,  have  a  lien  for 
the  price.     Dawson  v.  Ilnrrington,  12  111.  300. 

Although  it  might  be  proper  to  order  a  sale  by  a  master  or  commissioner,  yet  the  same 
result  is  produced  by  a  special  execution  to  the  sheriff.  Tlie  return  of  that  officer  would  be 
a  report  of  the  sale,  which,  if  not  made  in  pursuance  of  law,  might  be  set  aside,  and  another 
sale  ordered.     Kelly  v.  Chapman,  13  111.  530. 

The  decree  need  not  direct  to  whom  the  surplus  money,  if  any,  arising  from  the  sale, 
should  be  paid;  that  may  remain  subject  to  a  future  order  of  the  court.     lb. 

The  rights  of  a  person  not'made  a  party  are  not  affected  by  the  decree  or  any  proceed- 
ings under  it.     lb. 

It  is  the  duty  of  tlie  party  who  complains  of  the  verdict,  to  preserve  the  evidence  in  the 
record,  either  by  a  bill  of  exceptions  or  a  certificate  of  the  judge.     lb. 


CHAP.  XL.]  LIEN  OF  MKCIIAXICS,  ETC.  505 

time  of  the  contract,  and  al-so  again.st  lii.s  jjroperty  generally ;  or  by 
scire  fiivias  a;^ainst  the  original  debtor  and  all  j)cr.soiis  owning  or  pcjsses- 
sing  the  property,  and  in  this  case  execution  .shall  run  against  the  pro- 
perty alone.  When  a  chiini  of  this  kind  ha.s  been  paid,  the  creditor 
shall,  under  penalty  of  forfeiting  the  amount  of  his  lien,  acknowledge 
satisfaction,  to  be  put  upon  the  record,  as  in  case  of  mortgagt^s.  The 
lien  extends  to  a  convenient  si)ace  of  land,  not  exceed ing-ih^e  hundred 
square  feet  clear  of  the  building,  if  owned  by  the  contractor.  A  late 
statute  gives  a  lien  to  siih-contrudors,  who  do  work,  &c.,  upon  buildings, 
provided,  that  upon  making  settlement  with  their  einphjyer  they  give 
notice  of  their  claims  to  the  owner.  Such  parly  must  also  have  given 
written  notice  of  his  intention  to  work,  and,  within  ten  days  of  the 
time  when  his  claim  is  due,  file  a  copy  of  the  settlement,  lie  may  then 
enforce  his  demand  by  a  suit.  By  another  act,  the  lien  of  mechanics, 
&c.,  operates  upon  any  qualified  interest  in  the  property,  and  every  me- 
chanic, &;c.,  has  a  lieu,  whether  employed  by  the  owner,  his  agent,  the 
contractor,  or  sub-contractor.  In  case  of  leased  land,  the  building  will 
be  held,  and  also  the  lessee's  interest  in  the  lease,  unless  forfeited,  in 
which  case  the  building  may  be  removed,  a  ground-rent  being  paid  to 
the  lessor.  The  land  is  also  liable,  unless  the  lease  was  recorded  before 
the  debt  was  incurred.  Notice  must  be  given  within  thirty  days  from 
the  contracting  of  the  debt  or  completion  of  the  work.  Such  notice 
must  either  be  personal,  or,  if  this  is  impracticable,  posted  on  the  build- 
ing, and,  within  six  months  afterwards,  a  statement  filed  with  the  clerk 
of  St.  Louis  county.  The  lien  will  have  priority  of  all  claims  arising 
since  the  work  was  commenced,  A  suit  must  be  commenced  within 
ninety  days  from  the  filing  of  the  account,  and  the  lien  ceases  in  twelve 
months  from  completion  of  the  work,  unless  a  suit  is  brought.  The 
liens  to  be  discharged  upon  the  record. (1) 

13.  la  Tennessee,  a  mechanic,  supplying  work  and  materials  by 
special  contract,  has  a  lien  upon  the  building  and  the  land,  not  exceed- 
ing one  acre.  The  lien  is  paramount  to  all  legal  process,  except  a 
judgment  prior  to  the  commencement  of  the  building.  A  suit  must  be 
brought  \n  one  year  from  completion  of  the  work  ;  or  within  six  months, 
in  Davifhon  county.  Courts  of  law  have  jurisdiction,  and  enforce  the 
lieu  by  Jieri facias. {2){a) 

(1)  Misso.  St.  108-9;  St.  1840-1,  105-G ;  I  (2)  Ten.  St.  1825,  32;  1829,  47;  Foust  v. 
1843,  83-4.  I  Wilson,  3  Ilumpli.  31. 

(a)  Tlie  act  applies,  only  where  one  person  undertakes  and  completes  the  building.  A 
suit  must  be  instituted  within  ninety  days  after  filing  the  lien.  Lee  v.  Chamber?,  13  Mis. 
238.  Where  the  lien  is  filed  end  a  judjjraent  obtained  before  a  justice,  the  clerk  can  issue 
an  execution  without  a  return  of  7iuUa  bona,  on  au  execution  issued  by  the  justice.  lUing- 
worth  V.  Miltenl'crger,  11  Mis.  SO. 

The  provisions,  which  require  a  sub-contractor  to  give  notice  to  the  owner  of  his  intention 
to  do  work,  &c.,  before  commencing.'aro  repealed  by  the  act  of  1843,  so  far  as  St.  Louis 
county  is  concerned;  and  this  last  act  is  specially  applicable  to  St.  Louis  county,  and  is  not 
repealed  by  the  general  law  of  1845.     Speilman  v.  Shook,  11  Mis.  340. 

There  need  be  no  contract  between  the  owner  of  a  house  and  a  sub-contractor,  to  give  the 
latter  a  lien.  Ho  has  only  to  give  the  notice  required  by  the  statute,  alter  doing  the  work. 
Urin  V.  Waugh,  11  Mis.  412. 

A  mechanic,  under  a  special  contract,  furnished  certain  articles  and  did  certain  work  for 
the  erection  of  a  house,  and,  within  six  months  aller  completing  the  contract,  filed  his  ac- 
count. Held,  his  lien  was  good,  and  his  deed  from  the  sherilf,  given  after  a  sale  under  a 
judgment  rendered  on  his  account,  was  valid.     Viti  v.  Dixon,  12  Mis.  479. 

The  court  of  common  pleas  of  St.  Louis  county  has  not  jtirisdiction  of  actions  to  enforce 
mechanics'  liens,  under  the  Missouri  statute  of  1843.     Hammond  v.  Baruum,  13  Mis.  325. 


506  I-IEN  OF  MECHANICS,  ETC.  [CHAP.  XJ,. 

14.  In  Kentucky, (1)  persons  furnishing  labor  or  materials  {journey- 
men excepted,)  for  the  construction  or  repair  of  any  building  in  Lex- 
ington, have  a  lien  upon  the  land  accordii^gto  their  respective  interests, 
and  to  the  extent  of  the  employer's  estate  therein.  If  the  latter  claim 
the  land  b}'  an  executor}^  contract,  which  is  afterwards  set  aside  or  re- 
scinded, the  lien  shad  continue  against  the  owner  of  the  land,  so  far  as 
he  is  benefited  by  the  services.  If  the  employer  is  evicted  from  the 
land,  and  has  a  claim  for  improvements  against  the  owner,  the  person 
claiming  a  lien  shall  be  substituted  for  him  to  the  extent  of  his  lien. 
Private  corporations,  trustees  for  charity,  &c.,  are  included  in  the  act. 
In  six  months  from  the  completion  of  erecting,  repairing,  or  furnishing 
materials,  or  from  the  cessation  of  services  by  order  of  the  employer, 
an  account  shall  be  filed  v»'ith  the  clerk  of  the  court,  specifying  the  lien, 
which  shall  be  notice  to  all  the  world.  The  party  gains  no  lien,  unless 
he  follows  this  course,  or  proceeds  by  suit  to  enforce  the  lien  ;  in  which 
case  the  lis  pendens  commences  with  the  filing  of  the  bill.  The  pro- 
ceeding is  governed  by  equity  rules  as  to  liens  and  priorities. 

15.  In  Michigan,  mechanics,  &c.,  may  acquire  a  lien  by  contract  in 
writing.  A  suit  may  be  brought  in  sixty  days  from  the  debt's  becom- 
ing due,  and  nmst  be  brought  in  six  months  after  the  last  instalment  is 
payable.  Notice  is  given  to  the  owner  and  other  parties  having  liens. 
If  the  plaintiff,  in  consequence  of  the  defendant's  not  complying  with 
his  contract,  has  fulfilled  his  own  only  in  part,  his  lien  is  effectual  pro 
tanto.  A  portion  of  the  property  is  sold,  if  circumstances  make  it  proper. 
The  same  redemption  is  allowed,  as  in  case  of  execution  sales  of  equi- 
ties of  redemption.  The  lien  may  attach  to  estates  mortgaged  or  less 
than  a  fee;  and  is  subject  to  any  prior  attachment.  It  is  discharged  on 
the  margin  of  the  record. (2) 

16.  In  Arkansas,  mechanics,  &c.,  who  contract  verbally  or  in  writing, 
if  for  over  $100,  have  a  lien,  by  filing  an  account  within  three  months 
from  the  accruing  of  their  claim.  A  scire  facias  is  commenced,  and  the 
plaintiff  takes  upun  execution  his  share  of  the  property,  in  proportion 
to  the  amount  and  order  of  his  lien.  If  the  property  is  insufficient,  a 
new  scire  facias  issues.  A  suit  must  be  brought  withm  one  3'ear  from 
completion  of  the  work.  The  lien  includes  the  laud  aiound  the  build- 
ing, not  exceeding  two  acres,  exclusive  of  the  building.  The  lien  is 
subject  to  incumbrances,  existing  before  the  work  commenced,  and  re- 
corded or  known  to  the  party  ;  and  sale  is  made  accordingly.  Con- 
current jurisdiction  is  given  to  courts  of  law  and  equity.  Where  several 
mechanics  have  a  lien  on  the  same  property,  priority  is  allowed  in  the 
order  of  time.  If  the  property  is  insufficient  to  satisfy  the  claim,  exe- 
cution issues  against  any  property  of  the  debtor.  A  judgment  upon 
the  lien  gives  a  lien  upon  all  his  real  estate  in  the  county.  The  claim- 
ant may  at  the  same  time  bring  suits  upon  the  debt,  and  to  enforce  his 
lien.     The  lien  embraces  only  the  interest  of  the  party  contracting.(3) 

17.  In  Mississippi,  mechanics,  &c.,  have  a  lien  in  the  city  of  Natchez. 


(1)  Ky.  St.  1837,  215-6.  Seo  Laviolette  v. 
Redding,  4  B.  Monr.  81;  Finch  v.  Redding, 
lb.  88 ;  Longest  v.  Breden,  9  Dana,  141 ; 
Graham  v.  Holt,  4  B.  Monr.  6.  Where  a  bill 
is  pending  upon  a  mechanic's  lien,  the  prop 


There  can  be  no  separate  sale  of  a  house,  ir- 
respective of  the  owner's  interest  in  the  land. 
Fetter  v.  Wilson,  12  B.  Monr.  90. 

(2)  Mich.  Rev.  St.  537-42  ;   St.  1839,  231, 
232. 


crty  may  still  be  sold   on  execution,  euViject        (3)  Ark.  Rev.  St.  542;  St.  1842-3,  69-71; 
to  such  lien.     Glenn  v.   Coleman,  3  lb.  134.  |  1844,  5,  19 ;   184G,  82. 


CHAP.  XL.]  URS  OF  MECHANICS,  ETC.  507 

The  proceeds  of  sale  are  distributed  among  the  several  claimants.  The 
lien  continues  on!}'-  two  years  iVom  conirneneenient  of  the  buiMinj/,  un- 
less a  suit  is  brought  or  claim  tiled  within  six  months  from  the  doing 
of  the  work  or  finding  of  materials.  "  A  written  contract  of  agree- 
ment" is  to  be  recorded  within  three  months  from  the  time  of  nuiking  it. 
And  the  lien  is  discharged,  like  a  mortgage,  ui)on  the  record.  .  By  a 
late  act,  meelianics  erecting  or  repairing  buil.lings  in  any  \r:(y,  whether 
bv  special  agreement  or  not,  nave  a  lien  prior  to  all  others.  So 
upon  the  land,  subject  to  prior  incumbrances.  There  must  be  a  suit 
or  registration  within  twelve  months  fi-om  the  time  the  debt  falls  due. 
Execution  runs  against  the  property,  and  equitable  distribution  is  macje 
of  the  proceeds.  Justices  of  the  peace  have  jurisdiction  of  an  account 
within  their  usual  power.  In  such  cases,  the  contract  is  filed  with 
them.(l) 

18.  in  Georgia,  an  act  passed  in  1835  provides,  that  the  second  sec- 
tion of  a  former  act  shall  not  affect  any  claim  which  does  not  ex- 
ceed thirty  dollars.  If  the  claim  is  for  a  less  sum,  the  lien  may  be 
preserved  without  recording.  The  requisition,  also,  in  the  fourth  sec- 
tion, that  a  suit  be  brought  in  six  months,  is  repealed.  But  in  Prince's 
revision  of  the  laws  of  Georgia,,  which  purports  to  come  down  to  1837, 
there  is  contained  no  statute  upon  this  subject.  Steam  saw-mills,  at  or 
near  any  water-course,  are  subject  to  lien,  for  services  therein,  timber 
or  firewood  used  in  them,  or  provisions  or  supplies  furnished  to  them. 
Millwrights  and  builders  of  gold  machines  also  have  a  lien. (2) 

IV).  In  Alabama, (3)  all  master  builders  and  mechanics,  contracting 
to  erect  buildings,  or  to  do  jobs  of  work  upou  the  same,  shall  have  a 
lien  thereupon  for  all  their  dues,  unless  the  contrary  is  agreed  whCn  the 
contract  is  made.  But  the  contract  must  be  written  and  signed,  or  the 
amount  liquidated  between  the  parties,  and  a  net  balance  struck  in  fa- 
vor of  the  claimant;  or  an  award  made  in  his  favor  upon  submission 
to  arbitration  ;  or  a  judgment  recovered  by  him.  And,  if  his  claim  is 
contested,  evCn  where  a  net  balance  is  struck,  he  shall  proceed  at  law 
to  judgment  and  execution,  as  also  where  there  has  been  a  reference  to 
arbitration,  and  an  award  in  his  lavor.  The  contract  sh^^l  be  recorded 
with  the  clerk  of  the  court,  within  thirty  days  from  the  time  of  ma- 
kiug.(a) 

(1)  Missi.   St.   1819,   p.    32;   1840,    58-60.  |      (2)  Geo.  St.  1835,    UG ;  1842,    122.     See 
See  Andrews  v.  Wa.-^libum,  3  Sin.  &  M.  109;  '  Coleman  v.  Freeman,  3  Kelly,  137. 
Planlc-rg,  ic.  v.  Dodson,  9,  527 ;  Jones  r.  Al-  j      (3)  Aik.  Dig.  308. 
exander,  10,  627.  ' 

(a)  Variou.s  decisions  have  been  made,  in  construction  of  the  statutes  above  referred  to;  but 
most  of  tliom  iire  predicated  upon  the  particular  phraseology  of  the  several  acts,  and  involve 
few  poneral  principles. 

With  rcpard  to  the  part]/  wlio  is  liable  to  bo  affected  by  the  lien  in  question  ;  it  ia  held, 
that,  if  the  employer  is  eillier  nn  intruder  upon,  or  a  particular  tenant  of  the  land,  the  gene- 
ral owner  cannot  be  afleeted  by  the  li«'n.  A  law,  giving  this  effect  to  a  contract  between 
third  persons,  would  l>e  void  for  unconstitutionality.  Hence,  to  a  petition  in  such  case,  the 
general  owner  may  become  a  party  defendant.  Thaxter  v.  Williams,  14  Pick.  49.  See 
Holdship  v.  Abcrcrombie,  9  Watts,  52.  So,  an  execution  sale  under  the  lieu  law  passes  only 
the  title  of  the  party  in  pusse.s.'<ion,  when  the  building  was  erected.  O'Counerv.  Weaver,  4 
W.  &  S.  223  ;  Evans  v.  Montgomery,  Ibid.  218. 

So,  it  is  held,  that  the  lien  law  only  prefers  such  lien  to  every  other  lien  or  incumbrance, 
whicli  attached  upon  the  building  after  its  eommencement.     Jones  v.  Hancock,  1  Md.  Ch.  187. 

If,  when  the  lien  attaches,  iho   person  causing  the  building  to  bo  erected  lias  uo  title  to 


508  LIEN  OP  MECHANICS,  ETC.  [CHAP.  XL. 

the  premises,  but  a  mere  riffht,  resting  in  contract,  to  a  conveyance,  on  performance  of  a 
condition,  which  is  afterwards  lost  by  his  failure  to  perform  the  condition;  subsequent  pro- 
ceedino-s  to  enforce  the  lien  will  convey  no  right  or  title  to  the  purchase.  Scales  v.  Griffiin, 
2  Doug.  54. 

So,  a  mortgage  is  not  affected  by  a  lien  subsequently  accruing.  Hoover  v.  Wheeler,  23 
Miss.  (1  Cnsh.)  314;  Troth  v.  Hunt,  8  Blackf  580  ;  Zyle  v.  Ducomb,  5  Bin.  585  ;  Leigb  v. 
Bean,  Ash.  207  ;  Browne  v.  Smith,  2  Browne,  229  n. 

But  rents  accruing  after  the  lien  attached,  and  rightfully  received  by  the  administrator 
of  the  mortgagor,  may  be  subjected  to  the  lien.     lb. 

In  September,  a  party  filed  a  claim  for  work  done  between  May  and  September,  and  of- 
fered in  evidence  a  written  admission  made  in  September,  that  the  claim  was  correct.  In 
July,  he  had  mortgaged  the  property.  Held,  such  admission  could  not  prejudice  the  inter- 
est of  the  mortgagee,  and  the  mortgagee,  claiming  the  property,  might  appear  to  and  defend 
the  action.      Carson  v.  White,  6  Gill,  17. 

If  the  property  be  ordered  to  be  sold,  and  some  of  the  defendants  hold  incumbrances  older 
than  the  lien,  those  incumbrances,  in  the  order  of  the  dates,  should  be  preferred  to  the  com- 
plainant's.    Close  V.  Hunt,  6  Blackf  254. 

The  defendants,  in  such  case,  who  are  incumbrancers,  not  being  in  fault,  are  not  liable  for 
costs.    lb. 

But  where  a  carpenter  finished  a  dwelling-house  on  the  17th  of  November,  1842,  and 
filed  his  claim  in  the  office  of  the  clerk  of  the  county,  on  the  17th  of  January,  1843,  and 
on  the  22d  of  December,  1842,  the  owner,  then  in  possession  of  the  house,  mortgaged  it  to 
a  person  having  no  actual  knowledge  of  the  lien;  held,  the  lien  was  prior  to  that  of  the 
mortgage.     Vandyne  v.  Vanness,  1  Halst.  Ch.  485. 

February  25,  A  and  B,  to  secure  their  lien,  filed  their  account  in  the  clerk's  office,  as  re- 
quired by  the  statute,  an  abstract  of  which  was  entered  on  the  judgment  docket.^  At  the 
April  term,  they  instituted  an  action  of  assumpsit  on  the  account,  and  obtained  judgment 
against  the  ovviier  of  the  land;  execution  was  issued  against  the  specific  property,  and  sale 
made.  On  the  19th  of  March,  the  owner  had  executed  a  mortgage  on  the  property.  Held, 
the  title  acquired  under  the  sale  was  paramount  to  the  mortgage ;  that  the  bringing  of 
an  action  of  assumpsit  did  not  waive  the  lien  ;  that  the  declaration  in  such  action  may  be  in 
the  usual  form,  and  need  not  refer  to  the  lien ;  that  tiie  execution  may  issue  against  tlie  spe- 
cific property,  and  that  the  filing  of  the  account  and  affidavit,  and  entering  an  abstract  upon 
the  judgment  docket,  is  notice  to  all  the  world  of  the  lien.     Spence  v.  Etter,  3  Eng.  69. 

An  unfinished  house  was  sold  and  a  mortgage  given  back  for  the  price,  and  immediately 
recorded.  The  mortgagee  proceeded  with  the  building.  Held,  persons  furnishing  labor  and 
materials,  after  the  mortgage  was  recorded,  had  a  claim  prior  to  the  mortgage.  American, 
&c.  V.  Pringle,  2  S.  &  R.  138. 

Where  the  owner  of  land  subject  to  a  mechanic's  lien  mortgages  it,  but  remains  in  posses- 
sion, the  mortgagee  is  not  entitled  to  notice  of  the  petition.  Howard  v.  Robinson,  5 
Cush.  119. 

The  lien  of  a  judgment  recovered  against  the  proprietor,  after  the  commencement  of  the 
work,  and  before  its  completion,  is  paramount  to  that  acquired  by  the  mechanic,  by  filing 
bis  account,  &c.,  ^ter  the  completion  of  the  work.     McCuUough  v.  Caldwell,  3  Eng.  231. 

A  building  partly  completed  was  bought  at  sheriff's  sale  by  A,  and  a  deed  given 
him.  A  judgment  being  recovered  against  A,  after  completion  of  tlie  buildiujj,  it  was 
sold  thereupon,  as  A's.  Held,  in  distributing  the  proceeds,  the  judgment  creditor  had  priori- 
ty of  a  mechanic,  who  worked  for  A,  in  completing  the  building.  Stevenson  v.  Stonehill, 
5  Whart.  301. 

With  regard  to  th.e  forms  of  proceeding  in  suits  upon  the  lien  law,  the  description  of  the 
debt  and  the  premises,  joinder  of  parties,  claims  and  property;  numerous  cases  have  been 
decided,  often  turning  upon  points  of  mere  local  application,  and,  therefore,  not  requiring  ex- 
tended notice.  It  has  been  held,  in  general,  that  tlie  statute  must  be  strictly  pursued ;  and 
the  particulars  of  the  claim  fully  stated.  Greene  v.  Ely,  2  Greene,  (Iowa,)  508.  So,  the 
petitioner  must  prove  the  contract  as  alleged,  and  he  cannot  abandon  the  contract  set  out, 
and  recover  upon  a  quantum  meruit.     Carroll  v.  Craine,  4  Gilm.  563. 

The  same  strictness  has  been  required,  in  stating  i\\e  place  where  the  property  is  located. 
Hence,  where  the  statute  extended  the  provision  to  the  village  ofL.,  and  a  building  was  de- 
scribed in  the  original  lien  and  the  scire  facias,  as  betiveen  the  turnpike  and  the  village,  and 
was  proved  to  be  upon  an  out-lot  adjoining  it ;  held,  the  act  did  not  apply.  Tilford  v.  Wal- 
lace, 3  Watts,  141.  But  see  Springer  v.  Keyser,  6  Whart.  187;  Davis  v.  Church,  1  W.  &  S. 
24;  Sullivan  v.  Johns,  5  Whart.  366. 

But,  if  there  is  a  want  of  common  certainty  in  a  description  of  a  lot  of  land  Vjythe  number 
thereof,  the  defendant  must  show  wherein  the  defect  or  uncertainty  consists.  O'Halloran  V. 
Sullivan,  1  lb.  75. 

A  claim  for  materials,  under  the  Pennsylvania  statute,  without  specification  of  kind  or 
quantity  is  bad.     Lauman,  &c.,  8  Barr,  473.     See  Noll  v.  Swineford,  6  Barr,   107,     But,  a 


CITAP.  XL.]  LIEN  OF  MRCHANICS,  ETC.  509 

reference  to  a  special  contract,  in  a  meclianic's  claim,  is  unnecessary,  xuider  tiio  Pennsylva- 
nia stiilute  of  1845.     O'Brien  v.  Logan,  9  Barr,  97. 

Items  nfflaims  were  set  forth  tlius:  "Juiih  30,  1847.  To  buildiii);  03  2-3  perches,  at  $1  50 
and  muterials,  $95  50."  "July  29.  To  13  perchca  in  eeihir  dours,  at  $1  60,  $19  50." 
Held,  tlio  date  was  presumed  to  be  tiie  time  wlien  the  work  was  completed,  und  tiie  tjuan- 
tity  ascertained.     Doiiahoo  v.  Seott,  2  Jones,  45. 

A  niecluiiiic  who  adopts  a  statement  of  ids  claim,  signed  by  liis  attorney  at  law,  is  entitled 

to  the  l)eiie(it  of  it  by  iiis  sci.  fa.     lb.  

A  pelititiii  alleged,  tiiat  pnyment  was  to  bo  made  as  the  work  progressed,  and,  if  any  bal- 
ance should  remain  wlien  the  work  was  completed,  tliat  was  to  be  paid  as  the  parlies  could 
agree.  Held,  tiiis  was  a  sullicioiit  statement  of  the  time  of  payment.  Mix  v.  Kly,  2  Greene, 
(Iowa,)  513. 

Tiie  omission,  from  tiie  body  of  a  mechanic's  claim,  of  the  initial  letter  of  tlie  middle  name 
of  the  owner,  is  immaterial.     Knabb's  Appeal,  10  Barr,  18G. 

Claim  against  a  lioiise,  (describing  it,)  "and  tlio  lot  of  ground  and  curtilage  appurtenant 
to  said  binldiiig,"  "for  work  and  labor  done  witliin  six  monllis  last  past,  for  and  about  th» 
erection  and  construction  of  tlie  said  building  and  appurtenance."  Held,  not  sufficiently  cer- 
tain.    Barclay,  &c.,  1  Harr.  495.     See  Shaw  v.  Barnes,  5  Barr,  18. 

Wliere  tliero  is  a  contract  to  erect  houses  for  a  specified  sum,  and  it  lias  been  wliolly  or 
partially  perdirmed,  if  the  completion  has  been  dispensed  with  by  the  owners,  it  is  not  neces- 
sary tci  set  forth  the  items  of  work,  materials,  &c.,  in  the  cl»im  filed.  Young  v.  Lyman, 
9  Barr,  449. 

Where  the  copy  of  a  bill  annexed  to  a  mechanic's  claim  sets  forth  an  impossible  date,  as 
"1846,"  for  "1845,"  the  vari-ince  is  not  fatal,  if  tlio  real  date  of  furnishing  the  materials  be 
proved.     Hillary  v.  Pollock,  1  Harr.  186. 

Where  a  claim  for  alien  on  buildings,  c<'C.,  under  the  Pennsylvania  act  of  182G,  on  account 
of  bricks  furnislied,  was  dated  Nov.  7,  1847,  and  alleged  that  the  whole  number  was  furn- 
ished within  six  months  last  past,  and  a  bill  of  particulars  was  annexed  which  specified  June 
3,  1847,  as  the  date  of  the  last  delivery;  held,  tlie  time  when  ihe  bricks  were  luruish- 
ed  was  alleged  with  sufficient  certainty.     Calhoun  v.  Mahon,  2  Harr.  56. 

A  description  of  the  lot,  as  "number  751,  in  the  city  of  Dubuque,"  is  sufficient;  so  also  "a 
brick  luaise  upon  the  said  lot,  to  be  20  feet  by  30,  two  stories  high,  and  a  cellar."  O'Hallo- 
ran  v.  Sullivan,  1  Greene,  75. 

Where  a  plainlift',  in  a  sci.  fa.  upon  a  mechanic's  claim,  in  Pennsylvania,  has  been  non- 
suited, he  may  file  another  claim  lor  the  same  demand,  and  proceed  thereon,  though  ihe  for- 
mer chiitn  remains  on  the  records  of  the  court.     Bournonvillo  v.  Goodall.  10  Barr.  loo. 

Taking  a  bond  with  warrant  of  attorney,  and  entering  judgment  on  it,  are  not  jiling  a  claim 

or  instituting  a  s-uit,  within  the  meaning  of  the  lien  law.     Williams  v.  Teartiey,  8  S.  &  K.  58. 

In  a  suit  to  enforce  a  mechanic's  lien,  the  defendant  may  set  off  a  claim  for  unliquidated 

damages,  founded  upon  the  plainlifl's  breach  of  contract  to  erect  the  building.     Bayne  v. 

Gaylord,  3  Watt.s,  301. 

So  in  scire  facias  against  the  owner  and  the  contractor,  the  contractor  may  set  off  a  claim 
due  him  from  tiie  plaintill".     Gable  v.  Parry,  1  Harr.  181. 

A  joint  lien  may  be  filed  against  several  houses  btlonging  to  one  person.  If  two  houses, 
contracted  lor  together,  are  contiguou.s,  the  party  may  either  file  one  lien  against  all,  or  a 
separate  one  against  each,  making  a  fair  and  rateable  apportionment  of  the  amount  claimed. 
Pennix-k  V.  Hoover,  5  Rawle,  291.  See  Croskeyv.  Coryell,  2  Whart.  223;  Mc'Call  v.  Ka.st- 
wick,  2  Miles,  45 ;  Donahoo  v.  Scott,  2  Jones,  45. 

Tlie  thirteenth  section  of  the  Pennsylvania  act  of  1836  authorizes  a  joint  claim  against  two 
or  more  buildings  owned  by  the  same  person,  but  not  a  joint  claim  against  two  or  more  sep- 
arate blocks  of  buildings,  situate  on  dillerent  streets.  Chambers  v.  Yarnall,  3  Harr.,  265. 
Young  v.  Chambers.     lb. 

In  the  case  of  a  claim  against  a  block  of  buildings,  joint  entries  in  the  book  of  original  en- 
trios  of  the  material-man,  for  lumber  furnished  for  the  .same  and  another  block,  unaccom- 
panied by  liny  other  evidence  that  the  lumber  was  furnished  for  the  block  in  qiestion,  are 
not  admissible  in  evidence.      lb. 

A  material-man  filed  his  claim  in  scire  facias^  against  A  as  owner,  and  B  as  con- 
tractor, ill  which  the  defendants  prevailed.  A  new  sctVe /(/cm  was  then  brought  against  C 
as  owner,  and  B  as  contractor.  Held,  the  judgment  was  no  bar,  as  a  lormer  recovery.  Hamp- 
ton V.  Broom,  1  Mil«s,  241. 

Where  a  mechanic's  claim  is  filed  against-a  mansion-house,  barn,  wagon-house,  Ac,  on  one 
Airiri,  to  which  they  are  all  appurtenant,  and  areinten<led  to  be  occupied  and  u.sed  together, 
there  is  no  necessity  for  an  apportionment  of  the  claim  among  the  several  buildings.  Lau- 
man's  .\ppoal,  8  Barr,  473. 

A  maieii.il-man,  who  has  indiscriminately  furnished  materials  to  a  contractor,  for  the  erec- 
tion of  two  houses,  belonging  to  dillerent  owners,  may  divide  his  bill,  and  tile  a  separate  lien 
against  each  house.     Davis  v.  Farr,  1  Harr.  167. 


510  LIEN  OF  MECHANICS,  ETC.  [CHAP.  XL, 

There  is  no  mechanic's  lien  against  a  lessee  for  years,  for  work  and  materials  for  buildinga 
erected  by  liim  on  tlie  ground  leased.     Haworth  v.  Wallace,  2  Harr.  118. 

So,  buildings  and  fixtures,  erected  by  a  lessee  for  years,  for  the  purposes  of  trade,  are  not  the 
subject  of  a  mechanic's  Hen  in  favor  of  creditors  of  the  lessee.  Cliurch  v.  GrifBth,  9  Barr,  117. 

Nor  on  an  alteration  of,  or  addition  to,  a  house.  Matter  of  Howett,  10  Barr,  379;  Lan- 
dis'  Appeal.     lb. 

A  carpenter's  lien  extends  to  so  much  of  the  tract  of  land  on  wliich  the  house  is  built,  as, 
with  the  house,  would  be  required  to  discharge  it.  Yan  Dyne  v.  Van  Ness,  I  Halst.  Ch. 
485. 

A  church  is  the  subject  of  a  mechanic's  lien.     Presbyterian  Church  v.  Allison,  10  Barr,  413. 

A  lien  embraces  tlie  quantity  of  ground  necessary  to  the  proper  use  of  the  building,  aa 
intended  at  its  commencement.  It  is  also  limited  to  the  description  in  the  claim  filed, 
Pennock  v.  Hoover,  5  Rawle,  291  ;  Mc'Donald  v.  Lindall,  3  Rawle,  492. 

A  building,  partly  brick  and  partly  frame,  having  been  repaired,  was  removed,  and  after- 
wards a  cellar  was  dug  under  it  and  walled  up,  a  new  chimney  built,  and  the  house  newly 
tveather-boarded  and  plastered.  Held,  this  was  a  building  ertcttd  and  constructed  v.ithin  the 
meaning  of  the  hen  law.     Burling,  &c.,  Aslim.  377  ;  Olympic,  &c.,  2  Browne,  275. 

But,  the  addition  of  a  basement  to  a  frame  house,  fitted  for  occupancy,  is  not  an  erection 
within  the  law.     Miller  v.  Oliver,  8  Watts,  514. 

The  lien  attaches  to  an  engine,  by  which  a  steam  saw-mill  is  propelled,  it  being  part  of  the 
building.  Morgan  v.  Arthurs,  3  Watts,  140.  So,  it  seems,  one  who  furnishes  lumber  for  the 
Bhelves  of  a  vault  has  a  lien.  Ilarker  v.  Conrad,  12  S.  &  li.  301.  But,  not  in  Pennsylvania, 
on  a  steamboat.  Walker  v.  Anshutz,  6  W.  &  S  519.  The  lumber  may  be  dehvered  at  a 
shop,  distant  from  the  building.  So,  it  need  not  be  actually  used,  or  in  a  usual  or  necessary 
manner.     Hinchman  v.  Graliaiii,  2  S.  &  R.  170;  Harker  t.  Conrad,  12,  301. 

A  wife,  by  joining  with  her  husband  in  a  written  contract  with  a  mechanic,  for  furnishing 
labor  or  materials  for  erecting  a  building  on  her  land,  does  not  thereby  create  a  lien  on  her 
estate,  and  therefore  cannot  properly  be  joined  with  her  husband  in  a  petition.  But  such 
contract  creates  a  lien  on  the  husband's  estate,  and,  if  she  be  joined,  the  petitioner  may  dis- 
continue as  to  her,  and  proceed  against  the  husband.  Kirby  v.  Tead,  13  Met.  149;  Rogers 
V.  Phillips,  3  Eng.  3GG.     Contra,  Greenough  v.  Wigginton,  2  Greene,  435. 

By  sueli  a  contract  it  was  provided,  that  the  last  payment  should  be  made  "upon  the 
entire  fulfilment  of  the  contract,  ia  all  its  parts,  on  or  before  the  first  day  of  May,"  1844, 
also,  that  if  any  difficulty  sliould  arise,  it  should  be  submitted  to  two  housevvriglits.  The 
building  was  not  completed  on  the  first  of  May,  but  was  completed  on  or  before  the  tenth 
day  ol  Juno.  A  difficulty  arose,  as  to  the  construction  and  execution  of  the  contract,  and 
the  parties  submitted  it,  on  tlie  twelfth  day  of  June,  to  two  housewrights,  who  decided,  on 
the  fourteenth  day,  that  the  husband  and  wife  should  pay  to  the  mechanic  a  balance  less 
than  $430  ;  and,  on  the  thirteenth  day  of  December,  the  mechanic  filed  a  petition,  that  tlie 
land  miglit  be  sold,  and  the  proceeds  applied  to  the  discharge  of  the  balance  found  due  him. 
Held,  the  lien  on  the  husband's  estate  was  not  dissolved  at  the  filing  of  the  petition,  by  vir- 
tue of  the  provision,  "that  the  lien  sliall  be  dissolved  at  the  expiration  of  six  months  after 
the  time  when  the  money  due  by  the  contract,  or  tlie  last  instalment  thereof,  shall  become 
payable,  unless  a  suit  for  enforcing  the  lien  shall  have  been  commenced  within  the  said  six 
months."     lb. 

At  the  time  of  the  contract,  the  parties  had  not  had  a  child  born  alive;  but,  after  the 
mechanic  filed  a  petition,  they  had  a  child  born  alive.  Held,  the  lien  extended  to  the  hus- 
band's estate  as  tenant  by  the  curtesy  initiate.     lb. 

A  married  woman  cannot  be  an  employer,  so  as  to  charge  the  land,  unless  she  has  a  sepa- 
rate estate  therein,  with  a  power  of  charging  it;  neither  can  a  husband,  since  the  statute  of 
1846,  in  regard  to  property  of  married  women,  charge  his  estate  in  the  curtesy  in  his  wife's 
lands,  unless  she  join  with  him  in  the  contract  for  labor.     Fetter  v.  Wilson,  12  B.  Mon.  90. 

So,  the  lien  does  not  attach  to  the  separate  property  of  a  wife,  upon  her  contract,  either 
separate  or  jointly  with  lier  Imsband,  and  her  separate  property  cannot  be  made  liable  at 
law  for  such  contract.     She  has  no  power  thus  to  contract.     U.  S.  Dig.  1852,  H.  &  Wife. 

The  fact  that  the  materials  furnished,  for  which  a  lien  is  claimed,  were  charged  to  the 
contractor  individually,  without  reference  to  the  building,  does  not  preclude  the  plaintiff 
from  showing,  that  they  were  furnished  on  the  credit  of  the  building;  and,  whether  the 
materials  so  furnished  were  actually  used  in  the  construction,  is  immaterial.  Presbyterian 
&c.  V.  Allison,  10  Barr,  413.  The  acceptance  of  a  note  by  a  mechanic  is  not  a  waiver  of 
his  lien,  unless  it  was  so  intended,  Greene  ,v.  I'^ly,  2  Greene,  (Iowa,)  508.  Mix  v.  Ely, 
ib.  513. 

Where  a  promissory  note  has  been  given  for  part  of  the  debt  for  which  a  mechanics' 
lien  has  been  filed,  the  amount  may  he  recovered  by  the  claimant,  who  holds  the  note 
which  had  been  dishonored.     Johns  v.  Bolton,  12  Penn  State  R.  (2  Jones,)  339. 

Nor  is  an  agreement  to  receive  payment,  partly  iu  cash,  and  the  balance  in  lumber  at  fair 
prices,  whenever  called  ti)r,  &c.,  and  the  acceptance  of  a  guarantee  from  a  third  person,  for 
the  fulhlmeut  of  this  contract,  a  waiver.     Hinchman  v.  Lybrand,  14  S.  k  R. 


CHAP.  XL]  LIFN  OF  MECHANICS,  ETC.  511 

It  lias  Ik'Cii  liC'ld  in  Xcw  Jersey,  that  proceeding  by  personal  action  against  tlio  delttor  is 
not  a  waiver  of  a  carpenter's  lien.  Van  Dyno  v.  Van  Ness,  I  llalst.  Ch.  485.  liut  it  ia 
decidfd  otherwise  in  Pennsvlvania,  where  tlio  defendant  prevails  in  tlio  flrat  suit.  Wbelaa 
V.  Hill,  2  Wliurt.  118. 

A,  having  purchased  lumber  from  B,  to  be  u^cd  in  a  building,  came  into  possession  of  a 
note  signed  by  B,  payable  in  lumber  to  a  hirgcr  amount  than  tiiat  received  by  A,  and  after- 
wards purcliased  of  B  more  lumber,  exceeding  the  amount  of  the  note.  A  and  B  agreed  that 
the  note  «hould  go  to  the  account  of  another  building,  upon  which  B  lo.st  his  lic-n  by  neg- 
lecting to  file  his  claim  seasonaljly.  C  purchased  the  former  building  belJre  the  latter  waa 
commenced.  B  files  a  lien  claim  agninst  the  former  building,  for  the  whole  amount  of  lum- 
ber furnished.  Ilelil,  B's  claim  was  extinguished  pro  tmdo  ijy  the  nolo,  and  could  not  be 
enforced  for  the  whole,  as  against  C.     Hopkins  v.  Conrad,  2   Rawle,  31G. 

The  lion  commences  with  the  completion  of  tlio  work,  or  the  delivery  of  the  nialerials, 
under  the  contract,  the  requisites  of  the  act  being  complied  with.  McCullough  v.  Caldwell, 
3  Kng.  231. 

The  six  months  allowed  for  filing  such  claim  does  not  begin  to  run,  until  extra  work  dona 
at  the  request  of  the  owner.s  is  finisiied,  although  the  work  wiiich  had  been  specially  con- 
tracted for  had  been  previously  completed.     Johns  v  Bolton,  2  Jones,  339. 

When  a  work  was  completed,  the  mechanic  took  a  note  for  the  price  due,  which  note 
became  due  May  1,  1848.  Held,  proceedings  instituted  March  27,  1849,  were  commenced 
within  a  year  after  the  wages  became  due.     Mix  v.  Ely,  2  Greene,  513. 

Uiider  the  lien  law  lor  the  city  of  New  York,  (St.  1844,  p.  339,)  a  mechanic's  lien  is 
limited  to  one  year  from  its  commencement,  notwithstanding  the  recovery  of  a  judgment 
tliwreon  against  the  owner,  before  the  end  of  the  year.     Freeman  v.  Cram,  3  Comst.  305. 

Tiie  commencement  of  a  building  within  the  meaning  of  the  lien  law,  is  the  first  labor  done 
on  llie  ground,  which  is  made  the  foundation,  and  to  form  a  part  of  the  work  suitable  and 
necessary  for  its  construction  ;  and  this  is  unchanged  by  any  change  in  the  ownership  of  the 
land  and  building,  or  in  the  plan,  provided  tlio  original  design  of  its  character  remains. 
Pennock  v.  Hoover,  5  Rawle,  291. 

If,  after  such  lien  has  accrued,  the  employer  die,  a  bill  to  enforce  it  may  be  filed  against 
the  heirs.     Pifer  v.  Ward,  8  Blackf.  252. 

The  administrator  of  the  defendant  may  properly  be  made  a  party  ;  and,  if  the  plaintiff 
takes  a  judgment,  without  making  the  heirs  a  party,  he  does  it  at  his  peril  Mix  v.  lily,  2 
Greene,  513. 

A  person  entitled  to  a  lien  has  no  preference  over  the  general  creditors,  when  tlio  debtor 
has  deceased,  and  his  estate  has  been  rendered  insolvent  within  one  year  from  the  time  of 
granting  administration.  [Wells,  J.,  dissenting.]  Severance'  v.  Hanimatt,  28  Maine,  611. 
A.s  to  the  admission  of  parol  evidence  and  books  of  charges,  see  Hills  v.  Elliott,  16  S.  & 
R.  6f) ;  Church  v.  Davi.s,  9  Watts,  304;  Rehner  v.  Zeigler,  3  Watts  &  S.  258;  Dickinson, 
.Vc.  v.  Church,  1  Watts  &  S.  462. 

As  10  tlie  laws  of  Now  York  and  New  Jersey  upon  this  subject,  see  Haswell  v.  Good- 
child,  12  Wend.  373;    3  N.  Y.   Rev.  St.   273;  St.   1844,   451,   339;   1853,  708;    1854,  953, 
960;  N.  J.  St.  1840,  75;  Taylor  v.  Baldwin,  10  Barb.  626;  Flanigan  v.  Feuring,  2  N.  J.  387. 
The  word  owner  in  the  lien  law  is  the  correlative  of  contractor ;  meaning  the  person  who 
employs  him.  and  for  whom  the  work  is  done.     McDermott  v.  Palmer,  11  Barb.  9. 

A  'Mechanic  who  proceeds,  under  the  lien  law  of  New  York,  against  the  owner  of  a  build- 
ing, for  work  done  under  the  contractor.'*,  cannot  recover,  if  notiiing  be  due  to  the  latter  on 
their  contract.     Pike  v.  Irwin,  1  .Sandf.  14. 

Where  proceedings  were  instituted  by  a  mechanic  against  the  owner,  at  tUe  request  of 
the  latter,  for  work  done  under  the  contractor.*,  and  ho  promised  to  pay  the  demand,  oa 
being  furnished  wiili  an  order  I'rum  the  contractors,  wnich  was  done;  held,  the  owner  might 
prove,  in  his  defence,  that  there  was  nothing  due  from  him  to  the  contractors.     lb. 

If,  after  the  workman  has  given  notice  of  his  demand  to  the  owner,  the  contractor  fails  in 
ten  days  to  settle  the  demand,  or  to  agree  in  writing  to  submit  the  matter  to  arbitration,  the 
owner  becomes  liable  to  pay  the  demand,  no  matter  what  the  state  of  accounts  luay  be  be- 
tween the  mechanic  and  contractor.     Monleith  v.  Evans,  3  Sandf.  65. 

For  the  lawof  Iowa,  see  Code  1851,  154.  Personal  service  of  petition  is  necessary,  when 
the  defendant  can  be  found  in  the  county ;  if  not  to  be  found  in  the  county,  notice  posted 
on  the  buildings  subject  to  the  lien  is  a  sutTicienl  service;  in  which  case  it  must  appear  by 
the  officer's  return  that  the  defendant  could  not  be  found.  Colcord  v.  Funck,  1  Morris,  178. 
In  Vermont,  a  written  contract  to  build  or  repair  a  house  gives  a  lieu  for  three  months. 
Verm.  Sts.  1849,  16. 

The  statutes  of  Maryland,  upon  this  subject,  I  have  been  unable  to  examine.  It  has 
been  held  in  that  State,  thai,  in  order  to  have  allien,  the  mechanic  mu.«t  file  with  tlie  clerk 
of  the  county  court  a  statement  of  his  demand,  with  the  items  and  particulars  thereof,  in- 
cluding the  sum  due,  the  nature  of  the  work,  the  kind  and  amount  of  materials,  and  the 
time  when  the  work  was  done,  and  the  materials  supplied.     Carson  v.  White,  G  Gill,  17. 


512 


REilAIXDER— VESTED 


[CHAP.  XLI. 


CHAPTER   XLI. 


REMAINDER— VESTED  AXD  CONTINGENT  REMAINDERS. 


1.  Definition — cannot  be  after  a  fee. 

4.  Bj'  what  words  created. 

5.  Vested  or  contingent. 
7.  Wlien  contingent. 

9.  Classification  of  contingent  remainders. 

20.  Exception  to  tliird  class — limitation  for 

a  long  term — remainder  after  the  ter- 


mination of  a  life. 

24.  Limitation  after  a  life,  where  the  terra 
for  years  is  short. 

28.  Exceptions  to  fourth  class— Shelley's 
case — " designatio personm"  kc. 

34.  Ch.  J.  Willes'  division  of  contingent  re- 
mainders. 


1.  A  REMAINDER  is  a  remnant  of  an" ''estate  in  lands  or  tenements, 
expectant  on  a  particular  estate,  created  together  with  the  same  at  one 
time,  and  by  the  same  instrument,  and  limited  to  arise  immediately  on 
the  determination  of  tliat  estate,  and  not  in  abridgment  of  it.  Thus, 
if  A,  being  an  owner  in  fee,  convey  the  land  to  B  for  ten  years,  re- 
mainder to  C  and  his  heirs  forever,'^  B  is  tenant  for  years,  with  a  re- 
mainder to  C  in  fee.  Both  these  estates  subsist  at  one  time,  and  both 
are  parts  of  one  entire  estate,  making  together  the  absolute  and  perpet- 
ual inheritance  of  the  land.  The  former  is  said  to  be  merely  carved 
out  of  the  inheritance.  Hence,  where  the  fee-simple  is  first  conveyed, 
this  being  the  whole  estate,  no  remainder  can  be  validly  limited  upon 
it.  Thus',  where  land  is  conveyed  to  A  and  his  heirs,  and,  if  he  die 
without  heirs,  remainder  to  B  in  fee,  the  remainder  is  void.  So,  where 
land  was  devised  to  one  corporation  and  its  successors,  so  as  they  paid 
a  certain  annual  sum  to  another  and  its  successors,  on  failure  of  wliich, 
the  estate  of  the  former  to  cease,  and  the  latter  to  have  it;  held,  the 
latter  limitation  was  void.(l) 

2.  The  same  rule  applies  to  a  limitation  after  a  remainder  in  fee. 
Thus,  where  a  will,  after  giving  an  estate  in  fee  in  remainder  to  chil- 
dren, provided  that,  if  their  mother  survived  them,  it  should  go  to  her; 
held,  the  children  took  a  vested  remainder  in  fee,  and  not  a  contingent 
remainder.  (2) 

3.  Upon  the  same  principle,  it  has  been  held,  that  even  upon  a  con- 
ditional, base  or  qualified  fee,  no  remainder  can  be  limited,  because  the 
entire  fee  passes,  leaving  only  a  possibility  of  reverter  in  the  grantor. 
Thus,  if  lands  be  given  to  A  and  his  heirs,  so  long  as  B  has  heirs  of 
his  body,  or  till  B  returns  from  Kome,  remainder  to  C  in  fee  ;  the  re- 
mainder is  void  as  such,  though  it  might  be  good  as  a  shifting  use,  or 
executory  limitation.  This  principle,  however,  has  been  doubted. 
And  upon  an  estate  tail,  since  the  statute  de  douis,  a  remainder  may  be 
validly  limited.(3)(r/) 

4.  The  estate  above  described  may  be  created,  without  the  use  of 

(1)  Co.  Lit.  143  a;  4  Kent,  196-7;  1  Abr.  (  70  Rep  97  b;  Gardner  v.  Sheldon,  Vaugh. 
Eq.  18G;  Dyer,  33  a.  Buist  v.  Dawes,  4  269;  Willion  v.  Berkley,  Plow.  235 ;  4  Kent, 
Strolih.  Kq.  37.  198-9  ;  Peppercorn  v.  Peacock.  3  Man.  &  G. 

(2)  Blanchard  v.  Brooks,  12  Pii-k.  64.  356  ;   Doe  v.  Simpson,  5,  780. 

(3)  Co.  Lit.  18  a;  Edward  Seymor's  case,  1 


(a)  As  to  merger  in  case  of  conditional  fees,  see  Doe  v.  Simpson,  4  Bing.  N.  333. 


CHAP.  XLL] 


AND  CONTINGENT  REMAINDERS. 


513 


the  word  reiiiaiiidti\  by  any  exprcssion.s  of  e([iiivulent  inclining;  as, 
for  instance,  that  after  the  death  of  A  the  hind  .shall  revert  and  descend 
to  B,  &e.(l) 

5.  liernainders  arc  either  ve6led  or  conliiKjvnL  The  former  is  when 
there  is  a  person  in  bein;^,  who  would  have  an  iniinetliate  right  to  the 
pos.session  of  the  lands,  upon  the  ceasing  of  the  intermediate  or  prece- 
dent estate  ;  or  where,  if  the  precedent  estate  should  lermiiuite  'iinme-. 
diately  after  its  creation,  the  remainder  would  then  take  eii'cct.  In 
other  words,  a  vested  remainder  is  a  present  interest,  though  to  be 
enjoyed  in  future;  an  immediate  right  of  present  enjoyment,  ov  a 
present  fixed  right  of  future  enjoyment.  And  there  may  be  many 
successive  remainders,  all  of  which  shall  be  vested.  Thus,  if  the  laud 
be  limited  to  A  for  life,  remainder  to  B  in  tail,  rcmaind(ir  to  C  ifi  fee; 
B's  remainder  is  vested,  because,  if  A  should  immediately  die,  B 
woulil  take  ;  and  C's  is  vested,  because,  if  A  should  immediately  die, 
and  also  B,  without  heirs,  C  would  take.  A  vested  remainder  is  in 
general  subject  to  the  same  dispositions  with  an  estate  in  possession. 
It  gives  a  legal  or  equitable  seizin.(2)  But  it  is  said,  that  in  some  in- 
stances a  vested  remainder  would  seem  to  possess  the  essential  qualities 
of  a  contingent  estate. (8)(a) 

6.  Devise  to  the  wile  of  the  testator  during  widowhood  ;  and,  upon 
her  marriage,  one-half  the  estate  to  go  to  a  son.  Another  clause  de- 
vised to  the  son,  upon  the  death  of  the  widow,  tJie  remaining  part  of 
the  testator's  landed  property.  The  introductory  clause  of  the  will 
expressed  an  intent  to  dispose  of  all  the  testator's  property.  The 
widow  having  married,  held,  the  son  was  entitled  to  possession  of  one 
raoiet}'-  of  the  estate,  and  that  he  took  a  vested  remainder  in  the  other; 
that  the  remainder  was  subject  to  execution,  and  the  purchaser  entitled 
to  possession  upon  the  death  of  the  widow,  notwithstanding  the  son's 
death  during  her  life.  The  son  took  a  vested  remainder  in  the  whole 
estate,  because  it  depen<led  upon  a  certain  event,  the  death  of  the 
widow,  who  took  a  life  estate  by  implication,  determinable  as  to  a 
moiety  by  her  marriage.  The  conditional  limitation  to  the  precedent 
estate,  to  wit,  the  second  marriage,  gave  the  son  possession  of  a  moiety 
on  the  happening  of  that  event.(4) 

7.  A  remainder  is  contingent,  when  it  is  limited  to  take  effect  on  a 
conditi(jn,  which  may  never  happen  or  be  performed,  or  not  till  after 
the  determination  of  the  preceding  estate. (5) 

8.  It  was  remarked  by  Lord  Cnief  Justice  Willes  to  the  House  of 
Lords,  that  "the  notion  of  a  contingent  remainder  is  a  matter  of  a 
good  deal  of  nicety;  and  if  I  should  trouble  you  with  all  that  is  said 
in  the  books  concerning  contingent  remainders,  and  the  instances  that 
are  put  of  them,  I  am  afraid  it  would  rather  tend  to  puzzle  than  en- 
lighten the  case."l^6) 

y.  Mr.  Fearne  divides  contingent  remainders  into  four  classes. 


(1)  2  Cruise,  238. 

(2)  I  N.  Y.  Rov.  St.  723;  Willes,  3:i7  ;  4 
Kent,  201;  1  Prest  on  Est.  94-3;  Bowling 
V.  Do'oyn,  5  Dana,  438 ;  Jackson  v,  Sublelt, 
10  B.  Mod.  467. 


(3)  4  Kent,  204. 

(4)  Chapin  v.  Marvin,  12  Weud.  538. 

(5)  2  Cruise,  238. 

(6)  Willes,  337. 


(a)  A  remainder  in  fee,  limited  upon  an   estate  tail,  is  vested,  because  the  latter  must  at 
some  time  come  to  an  end.     1  Stepli.  302. 

Vol.  L  38 


514  EEMAINDER— TESTED  [CHAP.  XLL 

10.  First,  where  the  remainder  depends  on  a  contingent  determina- 
tion of  the  prior  estate,  by  the  act  either  of  a  third  person  or  of  the 
prior  owner  himself.  Thus,  if  A  convey  to  the  use  of  B  till  C  returns 
from  Kome.  and  after  such  return  to  remain  over  to  D  in  fee ;  here 
B's  estate  will  end,  and  D's  take  effect,  only  upon  a  particular  event, 
which  may  possibly  never  happen.  So,  where  one  conveys  to  the  use 
of  A  in  tail,  until  he  does  such  an  act ;  then  to  B  in  tail ;  B  has  a  con- 
tingent remainder.(l) 

11.  Second,  the  remainder  may  be  limited  to  take  effect  only  upon 
the  happening  of  an  event,  which  is  wholly  independent  of  the  mode 
of  termination  of  the  prior  estate. 

12.  Thus,  if  a  lease  for  life  be  made  to  A,  B  and  C,  and,  if  B  survive 
C,  remainder  to  B  in  fee,  the  remainder  does  not  depend  upon  the 
manner  of  termination  of  the  prior  estates,  but  upon  B's  survivorship. 
In  other  words,  the  prior  estates  are  subject  to  no  contingency,  but 
must  expire  by  their  natural  limitation.  The  contingency  is  in  the 
remainder  only.(2) 

13.  Devise,  to  the  use  of  A,  the  heir  at  law,  for  life  ;  and  from  and 
after  his  death  to  the  use  of  B  in  fee,  in  case  B  should  survive  A ;  but, 
if  she  should  die  living  A,  to  the  use  of  A  in  fee.  B  has  a  contingent 
reraainder.(3) 

14.  Third,  the  remainder  may  be  limited  upon  an  event  which, 
though  it  must  happen  at  some  time,  may  not  occur  till  after  the  ter- 
mination of  the  prior  estate,  in  which  case,  as  will  be  seen  hereafter, 
the  remainder  becomes  void. 

15.  Conveyance  to  A  for  life,  and,  after  the  death  of  B,  remainder  to 
C  in  fee.  If  A  should  die  before  B,  C's  remainder  could  never  take 
effect.     Hence  it  is  contingent. (4) 

16.  A  testator  devised  land  to  his  wife,  and  proceeded  to  devise  "to 
any  child  or  children  of  mine  which  I  shall  leave  at  my  decease,  and 
to  "their  heirs,  and  to  all  the  G's  (children  of  his  wife)  who  shall  be 
living  at  my  wife's  decease,  equally  to  be  divided  among  them  all,  the 
reversion  and  remainder  of  said  real  estate  after  the  death  of  my  wife, 
in  equal  portions  to  each  of  them  and  their  heirs  in  common  ;  and  if 
none  of  the  G's  be  living  at  the  decease  of  my  wife,  then  the  said  re- 
version shall  remain  to  my  said  child  or  children  and  their  heirs." 
The  wife  survived  all  her  own  children,  and  the  son  and  only  child 
(b}^  a  former  wife)  of  the  testator,  and  died.  Held,  the  wife's  children 
had  only  a  contingent  remainder,  which  never  vested  ;  and  the  estate 
vested  in  the  testator's  son,  either  as  devisee  or  heir,  and  descended  to 
his  heirs,  not  to  the  collateral  relations  of  the  testator.(5) 

17.  A  testator  gave  his  daughter  the  income,  &c.,  during  the  life  of 
her  husband  ;  and,  if  she  survive  him,  to  her,  her  heirs,  &c.,  a  moiety 
of  the  estate — the  other  moiety  to  her  children  in  fee ;  and,  if  she  sur- 
vive her  husband  and  all  her  children,  to  her,  her  heirs,  &c. ;  and  if 
she  should  die,  living  her  husband,  then  to  him  the  income,  &c.,  of  a 
moiety  for  life,  and  the  residue  of  the  estate  to  her  children  in  fee. 
The  husband  and  four  children  of  the  daughter  were  living,  at  the 
making  of  the  will,  the  death  of  the  testator,  and  at  her  death.     Held, 

(1)  Fearne,  5 ;  Arton  v.  Hare,  Poph.  97  ;  I      (3)  Doe  v.  Scudamore,  2  B.  &  P.  289. 
Lar^t-'s  case,  3  Leo.  182.  (4)  Boraston'.s  case,  3  Picp.  20  a. 

(2)  Co.  Lit.  378  a;  Ryder,  11  Paige,  185.    I      (5)  Dixon  i;.  Picket,  10  Pick.  517. 


CHAP.  XLI.]  AND  CONTINGENT  REMAINDERS.  51 

she  took  a  life  estate  for  the  joint  lives  of  herself  ami  husband  ;  that 
her  ehiltiren  took  a  vested  estate  in  one  moiety  ;  that  the  remainder  to 
them  in  the  other  moiety  was  euntingcnt,  depending  upon  the  event  of 
hor  dying  belore  or  after  the  husband  ;  tliiit,  if  she  should  survive 
him,  she  would  take  it  in  fee  ;  if  he  should  survive  her,  he  would 
take  a  life  estate  in  this  moiety,  with  remainder  to  her  ehildreu  ;  and 
that,  as  he  did  survive  her,  the  children  took  a  vested  reivMHnder.(l) 

17  a.  Devises  to  two  grandchildren,  with  this  proviso,  "  if  both  my 
said  grandchildren  shall  happen  to  die  under  age  and  without  any  lawful 
issue,  then  it  is  my  will  that  three  fourth  parts  shall  be  equally  divided 
between  A,  B  and  C,"  &c.  The  grandehddrcn  lived  many  years  after 
thev  arrived  at  full  age,  and  then  both  died  without  issue.  Ileld,  the 
devise  over  to  A,  B  and  C,  &c.,  never  took  ellect.(2) 

17  b.  A  testator  gave  all  his  personal  estate  to  his  wile ;  also,  all  his  real 
estate  in  fee,  except  two  lots  of  land.  Those  parcels  he  devised  to  his 
wife  for  life,  and,  after  her  death,  in  case  his  daughter  A  (his  only  child) 
should  die  without  having  married,  or  without  leaving  any  child  or 
children,  one  parcel  to  his  nephew  B,  and  the  other  to  his  nephew  C. 
Tlie  daughter  survived  the  mother,  but  afterwards  died  without  issue. 
ileid,  the  nephews  took  contingent  remainders  in  fee,  which  w'ould 
take  effect,  only  in  ease  the  daughter  died  childless  during  the  life  of 
the  widow  ;  that  the  daughter,  in  the  meantime,  took  the  fee  by  descent ; 
and  that,  on  her  surviving  the  widow,  the  remainders  fell,  and  she  be- 
came entitled  to  the  premises  absolutely .(3) 

17  c.  A  testator  devised  certain  lands,  slaves,  bank  stock,  &c.,  to  his 
executors,  in  trust,  to^  apply  the  rents  and  profits  to  the  support  of  A 
and  his  family,  until  he  should  be  thirty-five  years  of  age,  and,  if  his 
bu-iness  habits  should  then  be  good,  then  to  convey  the  same  to  A  ab- 
-i>lutely  ;  otherwise,  in  trust,  to  settle  the  same,  so  as  to  give  the  use 
Hid  profits  to  A  for  life,  with  remainder  over  te  such  child  or  children 
as  he  might  leave  living  at  his  death  ;  but,  if  he  should  leave  no  child, 
then  remainder  over  to  the  children  of  B.  A  died  before  he  arrived 
at  the  age  of  thirty-five.  Held,  A  took  only  a  life  estate,  subject  to  be 
enlarged  to  an  absolute  estate  on  the  contingency  mentioned ;  and  that, 
'in  his  death  before  the  happening  of  the  contingency,  the  remainder 
took  effect,  and  the  absolute  estate  vested  in  his  eidldren.(4) 

18.  Fourth,  the  remainder  may  be  limited  to  persons  not  in  existence 
or  ascertained  at  the  time  of  such  limitation.  Conveyance  to  A  for 
life,  remainder  to  the  right  heirs  of  B,  who  is  living.  Inasmuch  iS 
nemo  est  hcures  viventis^  and  until  B's  death  it  cannot  be  known  who  his 
heirs  will  be,  and  he  may  die  before  A,  the  remainder  is  contingent.(5) 
ly.  Conveyance  to  A  and  B  for  their  joint  lives,  remainder  to  the 
heirs  of  the  survivor.  Since  it  is  uncertain  which  of  them  will  survive 
the  other,  the  remaimU-r  is  contingent.(6) 

20.  An  exception  to  the  thinl  class  above  enumerated,  is  whrrc  the 
prior  estate  is  for  a  very  long  term,  and  the  remainder  is  limited  upon 
the  death  of  the  particular  tenant,  or  of  a  third  person.  Here,  the  im- 
probability, of  such  person's  outliving  the  prior  estate,  is  so  great,  that 


{W  Blandiard  v.  Brooks,  12  Pick.  47. 
(2)  Doe  V.  WhIsom.  8  How.  (U.  S.)  263. 
(:{)  Wolfe  V  Vmi   NostrHiid,  2  Com.st.  436. 
(4)  Mooiicy  r.  Evans,  6  Ired.  Eq.  363. 


(5)  See  Woodson  v.  Ilaviland,   18  Conn. 
101. 

(6)  Biggot  V.  Smyth,  Cio.  Car.  102. 


51f5  REMAINDER— VESTED  [CHAP,  XLI, 

the  remainder  is  held  to  be  not  contingent  but  vested.  As  the  hfe 
cannot  exceed  the  term,  and  the  term  must  determine  with  the  life,  the 
limitation  from  the  expiration  of  the  life  is  in  effect  a  limitation  from 
the  end  of  the  term.(l) 

21.  Conveyance  to  the  use  of  A  for  ninety-nine  years,  if  he  live  so 
long,  and,  after  his  death,  of  B  in  fee.     B's  remainder  is  vested.(2) 

22.  A  person  covenants  to  stand  seized  to  the  use  of  himself  for  life, 
remainder  to  A  for  eighty-nine  years,  if  B,  his  son,  should  live  so  long; 
remainder,  after  B's  death,  to  0,  another  son,  in  tail.  C  takes  a  vested 
remainder.(3) 

23.  A  conveyed  to  the  use  of  himself  for  life,  remainder  to  the  feof- 
fees for  eighty  years,  if  B,  and  C,  his  wife,  should  so  long  live ;  if  C 
survived  B,  to  the  use  of  C  for  life ;  after  her  death,  to  the  use  of  the 
son  of  C  and  B  in  tail ;  for  default  of  such  issue,  to  the  use  of  D  and 
E  in  tail,  remainder  to  A's  right  heirs.  A  died,  and  C  died  leaving  a 
son,  who  died  without  issue.  In  a  suit  between  D  and  E,  and  the  heir 
of  A  ;  held,  the  remainder  in  tail  to  the  first  son  of  C  and  B,  and  the 
remainder  to  D  and  B,  were  vested  remainders,  the  law  not  regarding 
the  possibility  that  B  and  C  would  outlive  the  term  of  eighty  years.(4) 

24.  A\^here  the  term  is  so  short  that  there  is  a  probability  of  its  ter- 
minating before  the  life,  the  remainder  is  contingent. 

25.  Limitation  to  A  for  twenty-one  years,  if  he  live  so  long,  after 
his  death  to  B  in  fee.     The  remainder  is  contingent.(5) 

26.  And,  in  some  cases,  the  same  rule  has  been  adopted  where  the 
possibility  seemed  very  remote. 

27.  Devise  to  A  for  sixty  years,  if  he  live  so  long  ;  from  and  after  his 
death,  to  B,  his  son,  in  tail.  A  was  forty  years  old  (at  the  date  of  the 
will.)  Held,  this  limitation  could  not  be  construed  to  mean  from  the 
death  of  A  during  the  term.,  or  to  give  A  a  term  for  sixty  years,  if  he 
should  so  long  live,  and  vest  the  inheritance  immediately  in  B  ;  but 
that,  if  A  should  outlive  the  term,  which  was  possible,  B  could  not 
take,  and  therefore  the  remainder  was  contingent.(6) 

28.  To  the  fourth  class  of  contingent  remainders,  there  are  three 
exceptions. 

29.  The  first  arises  out  of  the  rule  in  SheUeijs  case,  so  called.(7) 

30.  The  principle  settled  by  that  case  is,  that  where  a  freehold  estate 
is  limited  to  a  person,  remainder  to  his  heirs,  or  the  heirs  of  his  body  ; 
instead  of  his  taking  a  particular  estate,  with  a  contingent  remainder  to 
his  heirs,  the  whole  inheritance  vests  at  once  in  him.  This  point,  which 
has  been  the  subject  of  great  discussion,  will  be  more  particularly  con- 
sidered hereafter.(a) 

31.  Upon  a  similar  principle,  where  the  grantor  or  devisor  of  an 
estate  limits  the  remainder  to  his  own  heirs ;  instead  of  a  contingent 


(1)  2  Cruise,  244. 

(2)  Weale  v.  Lower,  Pollexfen,  67. 

(3)  2  Cruise,  244 ;  cites  Lord  Derby's  case, 
Lit.  R.  370. 


(4)  Napper  V.  Sanders,  Hut.  119. 

(5)  Pollexfen,  67. 

(6)  Beverlej  v.  Beverley,  2  Yern.  131. 

(7)  1  Co.  104;  2  Rolle's  Abr.  417. 


(a)  See  Shelley's  case — Deed,  Devise. 

Un  ler  the  "act  regulatincr  the  descent  of  real  estate,"  passed  June  13,  1820,  in  New 
Jer-sey,  (R.  L.  774,  sec.  1,)  the  estate  of  the  children  of  a  devisee  for  life,  with  remainder  to 
his  heir.f,  is  a  contingent,  and  not  a  vested  remainder,  during  the  , life  of  the  life  tenant. 
Den  V.  Demarest,  I  N.  J.  525. 


CHAP.  XLI.] 


AND  CONTINGENT  REMAINDERS. 


517 


remainder  to  the  heirs,  the  cfTect  is,  to  leave  the  reversion  in  fee  in 
himself. 

32.  Thus,  where  one  devised  his  estate  to  his  widow  duriiif^  her 
wiih)\vh()()d,  and,  after  her  death  or  niarria.<i:e,  ordered  that  it  should  be 
distiil)uted  in  the  same  manner  as  if  it  had  not  been  devised;  held,  no 
valid  remainder  was  created,  but  the  reversion  in  fee,  exi)uctant*  upon 
the  wife's  life  estate,  deseended  to  the  testator's  heirs  at  law.(l)(a) 

33.  A  third  exception  is,  where  the  term  heirs  is  plainly  used  as 
desu/natio  jjersomf^ ;  as,  for  instance,  in  case  of  a  limitation  to  a  man  and 
the  heirs  of  his  body,  now  living.  So,  if  an  estate  is  devised  to  a  per- 
son and  his  heirs  duriiig  his  natural  life  ;  remainder  over  after  his  death  ; 
the  word  heirs,  if  it  have  any  legal  effect,  \<i  desir/nado  personce,  meaning 
that  those  who  are  the  heirs  apparent  shall  enjoy  ivith  ihe devisee  d\ir\i\g 
his  life  ;  and  he  takes  only  a  life  estate.  This  construction,  however, 
is  confined  to  devises.{2) 

34.  Mr.  Fearne's  fourfold  classification  of  contingent  remainders  is 
simplified  to  two  general  classes  by  Lord  Ch.  J.  Willes;  viz:  i.  Where 
the  person  to  whom  the  remainder  is  limited  is  not  in  esse ;  2.  Where 
the  commencement  of  the  remainder  depends  on  some  matter  collateral 
to  the  determination  of  the  particular  estate.  His  lordship's  language 
is,  however,  that  there  are  but  two  sorts  of  contingent  remainders  which 
do  not  vest.  This  would  hardly  imply  that  he  supposed  there  were  any- 
other  contingent  remainders  which  do  vest,  were  it  not  for  some  expres- 
sions in  a  subsequent  part  of  the  same  opinion  ;  where,  putting  the  case 
of  the  grant  of  an  estate  by  A  to  B  for  ninety-nine  years,  determinable 
in  B's  life  ;  he  says,  if  B  outlive  the  term,  surrender,  &c.,  A  may  enjoy 
the  estate  again — therefore,  he  has  a  contingent  freehold  during  B's  life. 
It  must  be  a  vested  interest,  for  it  was  never  out  of  him.  If  A  had  a 
contingent  freehold,  he  might  grant  it  over;  and Jf  he  do,  it  must  be  of 
the  same  nature  it  was  bef  )re — a  vested  freehold.  In  these  remarks,  the 
words  vested  and  contingent  seem  to  be  used  not  as  contradictory,  but 
synonymous,  or  at  least  consistent  terms.(3) 


(1)  Whitney  v.  Wliitney,  14  Mass.  88.    But  | 
Bee  Uatort  V.  \Vel)b,  8  Mu88.  458. 

[2)  4   Kent,   212;  Tliroop   d. 'WiUiams, 
Conn   98. 


(3)  Smith  V.  Parkburst,  3  Atk.  138 ;  Willes, 
337-9;  Throop  v.  Williams,  5  Conn.  99;  I 
N.  y.  R.  St.  723;   1  Wooddeaon,  191. 


(a)  Seo  Reversion. 


518 


REMAINDER— VESTED 


[CHAP.  XLII. 


CHAPTER  XLII. 


REMAINDER— VESTED  AND  CONTINGENT  REMAINDERS. 


1.  Contingency  of  remainder    depends    on 

present  capacity  oC  taking  effect. 

2.  Law  favors  vested  remainders. 

4.  Remainder  may  be  vested,  tliough  not  to 
take  effect  upon  every  possible  termi- 
nation of  prior  estate. 
7.  Intervention  of  contingent  estate — re- 
mainder not  thereby  contingent,  unless 
the  estate  is  a  fee. 

11.  Contingent  estates  may  be  devised,  as  sub- 
stitutes for  each  other. 

11.  Cross  remainders. 

18.  Prior   limitation   to   trustees    and  their 
heirs  till  a  certain  event. 

20.  Where  one  of  concurrent  remainders,  &c., 


vests — rest  defeated. 

21.  Successive  remainders — whether  the  con- 

tingency named  affects  only  one  or 
the  whole. 

22.  Limitation  after  an  estate,  depending  on 

a  contingency  which  never  happens. 
28.  After  the  conditional   termination  of  an 
estate,  which  never  takes  effect. 

30.  After   the   conditional  termination  of  an 

estate  which  takes  effect,  but   termi- 
nates otherwise. 

31.  "Words  importing  not  a  contingent  re- 

mainder, but  when  a  remainder  shall 
come  into  possession. 
45.  Remainder  upon  condition  subsequent. 


1,  From  the  preceding  remarks,  it  sufficiently  appears  that  the  ques- 
tion, whether  a  remainder  is  vested  or  contingent,  does  not  depend 
upon  the  certainty  or  uncertainty  of  its  ever  taking  effect  in  possession; 
but  upon  its  pi'esent  capacity  of  thus  taking  effect,  if  the  possess. oq 
were  to  become  vacant.(a)  Thus,  if  there  be  a  lease  for  life  to  A,  re- 
mainder for  life  to  B,  B's  remainder  is  vestud,  although  he  may  die 
before  A.  But,  if  there  be  a  ]ease  for  life  to  A,  remainder  for  life  to  B 
after  the  death  of  0,  inasmuch  as  B's  estate  would  not  necessarily  vest 
upon  the  present  determination  of  A's  estate,  the  remainder  is  contin- 
gent. Tlie  latter  illustration,  however,  shows  how  a  remainder  contin- 
gent in  its  creation  may  become  vested;  for,  upon  the  death  of  C,  B's 
remainder  undergoes  this  change,  because,  from  that  time,  if  at  any 
moment  A's  estate  should  cease,  B's  would  immediately  take  effect. 
Hence,  also,  it  appears  that  a  contingent  remainder  passes  through  two 
stages  before  it  becomes  an  estate  in  possession.  Thus,  in  the  case 
supposed,  upon  the  death  of  0,  living  A,  B's  contingent  remainder  be- 
comes a  vested  remainder ;  and  then,  upon  the  death  of  A,  the  vested 
remainder  becomes  a  vested  estate.(l)  So  a  remainder  in  fee,  limited 
by  will  to  the  eldest  son  of  the  first  taker,  to  whom  an  intermediate 
life  estate  is  given,  is  contingent,  until  the  birth  of  such  son ;  but,  on 
the  happening  of  that  event,  before  the  termination  of  the  life  estate,  it 
becomes  a  vested  estate  in  remainder.(2) 

2.  These  observations  lead  naturally  to  a  consideration  of  the  more 
minute  distinctions  between  vested  and  contingent  remainders.  It  may 
be  remarked  at  the  outset,  that,  in  England,  as  the  court  never  con- 
strues a  limitation  into  an  executory  devise,  where  it  may  take  effect  as 
a  remainder,  because  the  former  puts  the  fee  in  abeyance ;  so  neither 

(1)  Fearne,   329,  331 ;  W'illes,  337  ;  Wil-  I  v.  Long,  1  Strobh.  Eq.  43. 
liamson  v.  Field,  2  Sandf.  Ch.  533 ;  Bentley  |      (2)  Wendell  v.  Crandall,  1  Comst.  491. 


(a)  It  has  been  ^aid,  that,  in  some  cases,  even  without  this  capacity,  a  remainder  may  be 
vested.  The  true  principle  would  therefore  seem  to  be,  that,  with  this  quality,  a  remainder 
must  be  vested,  and  may  be  vested  without  it.     Cornish,  102. 


CHAP.  XLII.]  AND  CONTINGENT  REMAINDKRS.  519 

does  it  construe  a  rernaitidcr  to  be  contingent,  where  it  can  be  taken 
for  vested,  because  the  hitter  tends  to  support  the  estate,  and  the  former 
to  destroy  it,  by  putting  it  in  the  power  of  the  particular  tenant  to 
defeat  the  reinainiler  by  tine  or  feolfinent.(l) 

o.  Whenever  the  preceding  estate  is  limited,  so  as  to  diilerniine  on 
an  event  which  certainly  must  happen,  and  the  remainder  is^so  iimibjd 
to  a  j)erson  in  c^ine,  and  ascertained,  thit  the  preceding  etitate  may  by 
any  means  determine  before  the  expiration  of  the  estate  limited  in 
remainder,  such  remainder  is  vested.  But  whenever  the  preceding 
estate,  with  the  exceptions  above  named, («)  is  h  mi  ted  so  as  to  deter- 
mine only  on  an  event  which  is  uncertain,  and  may  never  happen  ;  or 
to  a  person  not  in  esse  or  not  ascertained  ;  or  so  as  to  require  the  con- 
currence of  some  uncertain  event,  independent  of  the  determination  of 
the  preceding  estate,  and  duration  of  the  estate  limited  in  remainder,  to 
give  it  a  capacity  of  taking  effect ;  the  remainder  is  contingent.(2) 

4.  The  definition,  given  above,  of  a  vested  remainder,  does  not  re- 
quire that  it  should  be  so  limited  as  to. take  effect  upon  every  possible 
determination  of  the  particular  estate.  It  seems  to  be  sufficient,  that 
the  preceding  estate  is  made  to  determine  upon  an  event  which  certainly 
must  happen,  although  it  may  determine  upon  other  events  which  may 
not  haj)pen,  and  although  it  is  only  upon  a  determin;ition  in  the  latter 
mode,  that  the  remainder  will  take  effect.  Thus,  if  an  estate  be  limited 
to  A  for  life,  remainder  to  B  for  the  life  of  A,  inasmuch  as  the  death 
of  A  is  a  certain  event,  and,  if  A"s  estate  should  terminate  by  for- 
feiture or  surrender,  the  remainder  would  take  effect ;  it  is  a  vested 
remainder.(3) 

5.  Conveyance  to  the  use  of  A  for  ninety-nine  years,  if  he  should  so 
long  live  ;  from  and  after  his  death,  or  other  sooner  determination  of  the 
estate  limited  to  him  for  ninety-nine  years,  to  the  use  of  trustees  and  their 
heirs  during  A's  lift',  to  preserve  contingent  remainders;  and,  after  the 
end  or  other  sooner  determtnation  of  the  said  term,  to  the  use  of  A's  sons 
in  tail,  remainder  over.  Held,  first  in  the  King's  Bench,  and  after- 
wards in  the  House  of  Lords,  that  the  estate  of  the  trustees  was  a  vested, 
not  a  contingent  remainder,  because  the  trustees  were  persons  in  esse 
at  the  time,  and  the  commencement  of  the  remainder  did  not  depend 
on  any  matter  collateral  to  the  determination  of  the  particular  estate. 
Lord  Ch.  J,  Willes  remaiked,  that,  upon  any  other  construction,  incase 
of  the  death  of  the  trustees  during  A's  life,  no  estate  would  vest  in 
their  heirs,  which  would  prove  the  universal  practice  of  inserting  the 
word  heirs  in  such  settlements,  to  be  wholly  useless  and  unmeaning, 
and  that  many  thousand  settlements  would  be  overturned  ;  in  pre- 
ference to  which  he  would  adopt  precedent  for  law,  and  follow  the 
maxim  ^^  commimis  error  facit  jus^  That  if  a  limitation  were  made  to 
A  for  ninety-nine  years,  determinable  on  his  life,  with  no  remaiu'^er, 
the  grantor  would  retain  a  vested  reversionary  interest,  which  would 
take  effect  on  the  expiration,  forfeiture,  or  surrender  of  the  term,  and 


(1)  Wilkes  V.  Lion,  2  Cow.  .I.'^S ;  Ives  v, 
Legge,  3  T.  R.  489,  n  ;  Deii  v.  Demarest.  1 
N.  J.  525  ;  Wolfe  v.  "Van  Noatran'l,  2  Couist. 
436 ;  Jolmson  «.  Valentine,  4  Sandf.  36.  f 


(2)  Fearno,  329  ;  Chapin  v.  Marvin,  12 
Wend.  538. 

(3;  Fearne,  279-86;  4  Kent,  202;  Cholm- 
ley'a  Case,  2  Co.  51  a. 


(a)  See  Chapter  41. 


520  EEMAINDER— VESTED  [CHAP.  XLII. 

this  interest  he  might  grant  over,  and  thereby  create  a  vested  remain- 
der in  the  grantee. (1) 

6.  The  limitation  in  this  case  seems  to  have  been  most  inartificially 
worded.  The  words  "from  and  after  A's  death,"  were  admitted  ou 
both  sides  to  be  wholly  senseless,  being  immediately  followed  by 
"  during  A's  life."  Moreover,  the  limitations  to  the  trustees  and  to 
A's  sons,  though  successive,  were  to  take  effect,  it  would  scjm,  upon 
precisely  the  same  contingency,  the  termination  of  the  term  for  years. 

7.  Where  a  contingent  limitation  intervenes  between  the  particular 
estate  and  a  remainder  to  a  person  in  esse,  the  latter  may  be  vested, 
provided  the  intervening  limitation  be  not  in  fee.  So,  where  neither 
remainder-man  is  m  esse  at  the  time,  but  the  latter  is  born  before  any 
one  in  whom  the  former  estate  can  vest.(2) 

8.  Limitation  to  A  for  life,  remainder  to  his  first  and  other  sons  in 
tail,  remainder  to  B  and  his  sons  in  the  same  way.  B  has  a  son  born, 
but  A  has  none.  B's  son  takes  a  vested  remainder,  subject  to  be  de- 
feated by  the  birth  of  a  son  to  A.  The  last  limitation  is  said  to  be 
executed  siib  modo,  so  as  to  open  and  separate  itself  from  the  particular 
estate,  whenever  the  contingency  happens.(3) 

9.  Where  the  intervening  estate  is  contingent  for  some  other  cause 
than  that  the  party  to  whom  it  is  limited  is  not  in  esse,  if  the  contin- 
gency does  not  extend  also  to  a  subsequent  remainder,  this  may  be 
vested. (4) 

10.  But  where  the  prior  limitation  is  in  fee,  no  subsequent  remainder 
can  be  vested. (5) 

11.  Although  a  remainder  cannot  be  limited  after  a  fee,  yet  it  may 
be  created,  to  vest  in  the  event  of  the  first  estate's  never  taking  effect : 
or  several  estates  in  fee  may  be  limited  contingently  as  substitutes  for 
each  other;  some  to  take  effect  on  failure  of  the  others,  and  in  their 
room.  Such  remainders  are  said  to  be  not  expectant,  but  contempo- 
rary ;  the  latter  not  contrary  to,  but  concurrent  with  the  former.  It 
is  not  a  fee  mounted  upon  a  fee,  but  a  contingent  remainder  with  a 
double  aspect,  or  on  a  double  contingency.  And  the  limitation  is  not 
good  as  a  remainder,  if  it  is  to  succeed,  instead  of  being  collateral  to,  the 
contingent  fee.  Thus,  in  a  limitation  to  A  for  life,  remainder  to  his 
issue  in  fee,  and,  in  default  of  such  issue,  remainder  to  B,  the  remain- 
der to  B  is  good,  being  collateral  to  the  contingent  fee  in  the  issue. 
But,  if  the  remainder  to  B  is  limited  upon  the  event  of  the  ]ss\xe''s  dying 
under  age,  though  it  may  be  good  as  an  executory  devise  or  shifting 
use,  it  is  void  as  a  remainder,  being  dependent  on  an  event,  which 
rescinds  a  prior  vested  fee.(6) 

12.  Devise  to  A  for  life,  and,  if  he  should  have  any  issue  male,  to 
such  issue  and  his  heirs  forever;  and  if  he  should  die  without  issue 
male,  then  a  part  of  the  lands  to  B  in  fee,  and  a  part  to  C  in  fee.  Held, 
all  these  several  limitations  in  remainder  created  contingent  remainders 


(1)  Berrington  v.  Parkimrst,  3  Atk.  135; 
Willes,  327-39;  6  Bro.  Pari.  Ca.  352, 

(2)  Fearne,  222. 

(3)  Uvcdall  V.  Uvedall,  2  Rolle  Abr,  119  ; 
Bowles'  CHse,  11  Rep.  80.  I  Equ.  37 

(4)  Napper  D.  Sanders,  Hut.  119. 


(5)  Luddington  v.  Kyme,  1  Ld.  Raym.  208 ; 
12  Pick.  64. 

(6)  1  Ld.  Raym.    203;    Doup;.   505  n.;  4 
Kent,    199-201;   Bulst  v.  Dawes,  4  Strobb. 


CHAP.  XLII] 


AND  CONTINGENT  REMAINDERS. 


521 


in  fee.     If  A  should  have  issue  male,  the  fee  would  vest  iu  him  ;  if  not, 
then  it  would  vest  in  B  and  C.(l) 

13,  Devise  to  A  for  life,  and,  after  his  death,  to  his  children  equally, 
and  their  heirs  ;  and  in  case  he  dies  without  issue,  to  B  and  C  antl  their 
heirs,  equally,  &;c.  lleld,  the  two  last  limitations  were  both  couti:/gent 
remainders  in  fee.(2)  So,  where  there  was  a-  devise  to  Arfor  lile,  re- 
mainder to  trustees,  &c.,  remainder  to  all  the  children  of  A,  begotten 
or  to  be  begotten  by  B,  and  their  heirs  forever,  &c.,  remainder  over; 
held,  according  to  the  clear  intent,  the  children  of  A  took  a  fee;  but, 
for  want  of  such  children,  the  subsequent  limitation  would  have  taken 
effect (3) 

14,  A  devised  to  his  daughter  B,  for  her  life ;  then  to  her  male  heir, 
C,  if  alive  at  her  death,  in  fee;  otherwise,  to  her  next  male  heir  in  fee. 
Held,  that  B  did  not  take  an  estate  tail ;  that  nothing  vested  in  0 
during  the  life  of  B,  because  he  was  to  take  only  if  he  should  be  living 
at  her  deatii,  and  therefore,  till  her  death,  the  fee  vested  nowhere;  that 
the  estate  to  C  was  contingent,  notwithstanding  his  being  designated 
by  name;  that  the  fee-simple,  which  was  to  vest  on  the  death  of  B, 
was  not  an  executory  devise,  but  a  contingent  remainder,  having  a 
preceding  fnehold  to  support  it ;  that  it  was  not  a  limitation  of  a  fee 
after  a  f 'C,  but  a  limitation  of  only  one  indefeasible  estate  in  fee  ;  that 
the  will  presented  a  contingency  with  a  double  aspect^  to  be  determined 
immediately  on  the  death  of  13,  at  which  time  an  indefeasible  estate 
would  vest,  either  in  C,  or  in  the  next  heir  male  of  B,  as  thecase  migiit 
be.  In  this  ease,  Gibson,  J.,  thus  states  the  general  rules  of  law  per- 
taining to  the  subject.  Where,  of  two  limiiations,  (in  lee,)  both  are  to 
take  effect;  the  latter  can  do  so  only  as  an  executory  devise^  for  a  re- 
mainder, originally  contingent,  but  afterwards  vested  by  the  happening 
of  the  contingency,  is  essentially  the  same  as  if-  it  had  been  vested  at 
its  origin  ;  but,  where  both  are  limited  alternately  on  the  same  event, 
by  the  happening  of  which,  one  is  to  vest  in  exclusion  of  the  other, 
there  both  are  contingent  remainders.(4) 

15.  Where  the  language  used  may  be  construed  to  create  either 
successive  and  alternative  contingent  estates  in  fee,  or  a  contingent 
preceding  estate  less  than  a  fee,  and  a  vested  remainder  in  fee,  the 
latter  construction  will  be  adopted,  as  the  more  accordant  with  the 
general  policy  of  the  law. 

16.  Devise  to  A,  the  testator's  daughter,  for  life ;  then  to  the  children 
of  her  body  begotten,  and  their  heirs  ;  in  default  thereof,  to  the  testator's 
son  B,  his  heirs  and  assigns,  B  died,  living  A,  having  devised  his 
interest,  and  then  A  died  without  children.  The  question  was,  whether 
B  took  a  vested  remainder,  which  could  be  devised,  or  onlv  a  contin- 
gent remainder.  Held,  he  took  a  vested  remainder.  The  clause,  in 
default  thereof  was  equally  applicable  to  the  failure  of  A's  chiklren  and 
of  their  heirs.  If  there  had  been  no  limitation  over,  or  a  limitation  to 
other  parties,  the  devise  would  have  made  a  contingent  fee-simple  to 
the  children  of  A.  But,  the  sub.sequent  remainder  being  limited  to  a 
collateral  heir  of  the  children,  they  must  take  an  estate  tail,  with  a 


(1)  Luddinpton  v.  Kyme,  1  Ld.  Raym. 
203  ;  Barii;irdiston  v.  Curler,  3  Bro.  Pari. 
Ca.  64.  See  Blancliard  v.  Brooks,  12  Pick. 
66.  •• 


(2)  Goodri^ht  v.  Dunliam,  Dong.  265. 

(3)  Doe  V.  Perryn,  3  T.  K.  -184. 

(4)  Duiiwoodie  v.  Reed,  3  Ser.   k  R.  435- 
452  ;  Deu  v.  Crawford,  3  Halst.  90. 


522  REMAINDER— VESTED  [CHAP.  XLII. 

vested  remainder  to  B.  Had  the  devise  in  question  applied  to  the 
failure  of  A's  children  only,  and  not  that  of  their  heirs,  then  there 
would  have  been  two  contingent  fees  simple,  the  one  to  take  effect 
only  on  failure  of,  or  as  a  substitute  for,  the  otlier.  But  the  law- 
would  not  adopt  this  construction,  except  where  the  language  abso- 
lutely required  it.(l) 

16  a.  Although,  where  a  fee  is  given  by  a  vested  limitation,  a  re- 
mainder upon  it  must  be  an  executory  devise,  and,  if  too  remote,  this 
and  all  subsequent  remainders  are  void ;  yet,  if  a  fee  be  limited  in 
coniingency,  and  the  estate  given  over  upon  a  contingency  divesting 
the  fee,  if  the  fee  so  limited  never  vests,  the  gift  over  takes  effect  as  a 
contingent  remainder.(2) 

17.  Cross-remuinders  are  another  qualification  of  expectant  estates, 
and  they  may  be  raised  expressly  by  deed,  and  by  implication  in  a 
devise.  Thus,  if  a  devise  be  made  of  one  lot  to  A,  and  another  lot  to 
B,  in  fee,  and  if  either  dies  without  issue,  the  survivor  to  take,  and  if 
both  die  without  issue,  to  C  in  fee;  A  and  B  have  cross-remainders 
over  by  express  terms,  and,  on  the  failure  of  either,  the  other,  or  his 
issue,  takes,  and  the  remainder  to  C  is  postponed.  But  if  the  devise 
had  been  to  A  and  B,  of  lots  to  each,  remainder  over  on  the  death  of 
both  of  them,  the  cross-remainders  to  them  would  be  implied.  So,  if 
different  parcels  of  land  are  conveyed  to  several  persons  by  deed,  and 
by  the  limitation  they  are  to  have  the  parcels  of  each  other  when  their 
respective  interests  shall  determine,  they  take  by  cross-remainders. 
This  subject  will  be  more  particularly  considered  hereafter.(3)(a) 

18.  Where  the  preceding  contingent  lemainder  is  limited  not  in  fee 
generally,  but  to  trustees  and  their  heirs,  until  the  happening  of  a 
certain  event,  the  subsequent  remainders  may  be  not  contingent  but 
vested. 

19.  Devise  to  A  for  life,  and  if  she  die  without  issue  of  her  body  liv- 
ing at  her  death,  to  trustees  and  their  heirs,  till  B  should  be  twenty-one 
years  old.  After  which,  devise  to  B  for  life,  remainder  to  his  suns  in 
tail  male.  In  default  of  such  issue,  or  if  B  should  die  under  twenty- 
one,  and  without  issue,  to  C,  &c.,  persons  in  esse.  Held,  the  limitation 
to  the  trustees  would  take  effect  only  upon  A's  djnng  without  issue, 
and  in  this  event  would  be  not  an  absolute  but  a  determinable  fee;  that 
B's  estate  was  contingent  only  till  he  should  come  of  age  ;  and  in  the 
meantime,  the  subsequent  remainders  were  vested.(4) 

20.  In  case  of  concurrent  remainders,  or  where  a  preceding  contin- 
gent remainder  is  in  fee ;  if,  in  the  one  case,  one  of  such  remainders,  or, 
in  the  other,  such  preceding  remainder,  becomes  vested,  the  other  re- 
mainders thereby  become  void.  Thus,  wheie  there  is  a  devise  to  A 
for  life,  remainder  to  his  issue  male,  in  default  thereof  remainder  over; 
upon  the  birth  of  such  issue,  the  first  remainder  becomes  vested,  and 
the  latter  thereby  void,  even  though  the  issue  die  before  A  himself.(5) 

21.  Where  there  is  a  limitation  of  several  successive  remainders,  the 

(1)  Ives  V.   Legge,   3   T.   R.  488  n.     See  1  16  Pick.  191 


Blanchurd  v.  Brooks,  12  Pick.  63. 

(2)  Kvers  t'.  Challis,   2   Eng.    L.    &   Equ. 
215. 

(3)  4  Kent,  201.     See  Packard  v.  Packard, 


(4)  Lethieullier  v.  Tracy,  3  Atk.  774  ;  Amb. 
204. 

(5)  Keene  v.  Dickson,  3  T.  R.  495. 


(a)  See  Deed;  Devise;  Cross- Remainder. 


CHAP.  XLTI] 


AND  CONTINGENT  REMAINDERS. 


528 


first  of  which  is  made  to  depend  upon  a  certain  contingency,  the  impor- 
tant question  arises,  whether  this  ccjiitingency  applies  only  to  the  first 
rcinaindL'r,  or  to  all  the  succeedin;^  ones  also.  Cases  ol"  this  kind  are 
divided  into  three  classes.  1.  Limitations  after  an  estate  which  depends 
on  a  contini^ency  tiiat  never  hap|)ens.  2.  Limitations  upon  a  condi- 
tional termination  of  an  estate  which  never  vests.  3.  LiiuUutions  upon 
a  conditional  termination  of  an  estate,  which,  though  the  estate  vest.s, 
never  happens. 

22.  In  the  ease  of  Letliieullier  v.  Tracy,  cited  above,  (s.  19,)  it  was  held, 
that  neither  the  condition  of  A's  dying  without  issue,  nor  the  condi- 
tion of  B's  coming  of  age,  aifeeted  the  remote  subsequent  limitations, 
which,  accordingly,  were  vested  remainders. 

28.  Devise,  to  the  use  of  A  for  liie,  remainder  to  his  first  and  other 
sons  by  any  future  u  ife  in  tail  male,  &c. ;  and,  if  A  should  marry  any 
woman  related  to  his  then  wife,  all  the  above  uses,  so  far  as  they  re- 
lated to  the  issue  of  A,  to  cease  and  be  void  ;  and,  in  such  case,  though 
A  have  issue,  the  trustees  to  stand  seized  to  the  use  ol  C,  &c.  A  died 
soon  after  the  testator,  not  having  again  married,  and  without  issue. 
Held,  the  remainder  to  C  took  effect,  not  being  defeated  b}'  the  want  of 
such  second  marriage. (1) 

24.  Devise  to  trustees,  to  pay  over  the  rents  and  profits  to  A  and  B, 
during  the  life  of  C,  (A,  B  and  0,  being  sisters  of  the  testator,)  their 
heirs  and  assigns  ;  and,  after  the  decease  of  C's  husband,  in  trust  for  A, 
B  and  C,  each  a  third  part,  for  life;  remainders  to  their  sons  in  tail 
male,  &c.,  cross-remainders  over.  C  died,  living  her  husband.  The 
question  was,  whether,  by  C's  death,  not  only  her  own  estate,  but  the 
sub.sequent  remainders  also,  were  defeated.  Held,  the  latter  were  not 
deH-ated.(2) 

25.  A  different  rule  is  adopted,  where  the  intention  of  the  testator 
seems  so  to  require,  or  wh'-re  the  court  cannot  find  upon  the  wliole 
will  suflicient  to  gather  a  different  intent,  so  as  to  warrant  them  in  sup- 
plying omitteil  words. (8) 

2r).  Devise  to'A,  the  testator's  son,  and  the  heirs  of  his  bod}- ;  and,  if 
A  should  die  without  issue,  and  the  testator'' s  wife  B  sliould  survive  A, 
that  she  should  enjoy  the  premises  for  her  life;  after  her  decease  to  C 
for  life;  after  her  tiecease,  {A  bt-ing  dead  without  issue  as  aforesaid,)  to  D. 
B  died  in  the  life  of  A.  Held,  the  remainder  of  D  was  defeated,  being 
contingent  upon  A's  dying  without  issue  in  the  lifetime  of  B.(4) 

27.  Devise  to  trustees,  in  trust  to  pay  a  certain  sum  to  A  for  life, 
and  the  rest  of  the  rents  to  B  her  husband  ;  and  after  her  death,  the 
whole  to  him  for  life.  1(  she  sJiould  /uiime^i  to  survive  her  husband,  then 
to  stand  seized  of  all  the  lands  upon  Ote  trusts  after  mentioned,  viz. :  to  A 
for  life,  then  to  her  son  and  the  heirsof  his  body,  remainder  to  the  heirs 
of  the  body  of  the  husband  by  her,  remainder  over.  A  died  before  B. 
Held,  not  only  A's  life  estate,  but  all  the  subsequent  remainders,  were 
defeated. (5) 

28.  The  second  class  of  cases,  is  where  a  remainder  is  limited  upon 
the  conditional  determination  of  a  preceding  estate,  which  never  takes 


(1)  Bradford  v.  Foley,  Doug.  53. 

(2)  llortonr  Wliitulter,  1  T.  R.  34C. 

(3)  Doug.  73-9. 


(4)  Davis  V.  Norton.  2  P.  Wms.  390. 
(5j  Doe  V.  Shippliard,  Doug.  75;  Fearne, 
236. 


524 


REMAINDER— VESTED 


[CHAP.  XLTL 


effect.  And,  here,  whether  the  preceding  estate  is  in  fee  or  otherwise, 
it  is  said,  that  by  whatever  means  it  is  out  of  the  case,  the  subsequent 
limitation  will  take  effect.(l) 

2y.  Devise  to  trustees  lor  years,  remainder  to  the  sons  of  A  succes- 
sively in  tail  male,  provided  they  should  take  the  testator's  surname. 
If  they  or  their  heirs  should  refuse  so  to  do,  or  die  without  issue,  to  the 
first  son  of  B  in  tail  male  on  the  same  condition.  B  had  a  son  at  the 
time  of  the  devise.  A  died  without  having  had  a  son.  Held,  whether 
the  contingent  limitation  to  persons  not  in  esse,  having  only  a  term  to 
support  it,  were  void  or  valid  ;  such  limitation  was  not  a  condition  pre- 
cedent of  the  subsequent  remainder,  and  that  the  son  of  B  took  a  vested 
remainder. (■.^) 

80.  The  third  case,  is  where  the  remainder  is  limited  upon  a  contin- 
gent determination  of  a  preceding  estate,  which  actually  takes  effect, 
but  does  not  terminate  in  the  mode  pointed  out.  In  this  case,  the 
remainder  shall  not  take  effect,  unless  the  general  intent  of  the  testator 
so  require.(3)(a) 

31.  Words  of  limitation  are  often  used,  which,  though  seeming  to 
import  a  contingent  remainder,  the  law  construes  merely  as  fixing  ihe 
time  when  a  vested  remainder  shall  become  an  estate  in  possession. 
This  construction  is  adopted,  where  an  absolute  propertv  is  given,  and 
a  particular  interest  in  the  meantime;  as,  until  the  devisee  shall  come  of 
age,  then  to  him,  &c.  And  a  remainder  will  always  be  construed  as 
vested,  where  the  words  admit  of  it.  Thus,  where  there  was  a  devise 
to  A  for  eight  years,  remainder  to  executors  till  such  time  as  B  shall 
be  of  age  ;  and  when  B  shall  be  of  age,  that  he  shall  enjoy  the  same  in 
fee  ;  held,  this  was  a  vested  remainder  in  B  ;  that  the  legal  construction 
was,  a  devise  to  executors  till  B  reached  twenty-one  years,  remainder 
to  B  in  fee;  and  the  remainder  was  no  more  contingent,  than  in  the 
common  case  of  a  lease  for  life  or  for  years,  remainder  over ;  that,  inas- 
much as  the  term  must  certainly  end,  the  adverb  when  created  no  con- 
tingency, but  merely  denoted  the  time  when  B  should  have  posses- 
sion. (4) 

82.  Devise  to  A,  when  and  so  soon  as  he  shall  be  twenty -one  years 
of  age  ;  if  he  die  under  age,  the  property  to  go  into  the  residue.  Held, 
A  took  a  vested  interest,  subject  to  the  condition. 

33.  Devise  to  A,  till  B  reaches  the  age  of  twenty-one  years ;  when 
B  reaches  that  age,  to  him  and  his  heirs.  B  dies  under  age.  Held,  a 
vested  remainder.(5) 

84.  Conveyance  to  the  use  of  A  for  life,  then  to  the  first  son  of  his 
body  and  his  heirs  male,  and  to  four  sons  successively  in  tail ;  and  if  it 
fortune  the  said  fourth  son  to  die  without  issue  male,  then  to  remain  to 


(1)  Avelyn  v.  Ward,  1  Ves.  422. 

(2)  Seatterwood  v.  Edge,  1  Salk.  229 ;  1 
Ves.  422. 

(3)  Fearne,  362. 

(4)  4  Kent,  204;  Driver  v.  Frank,  3  M.  & 
S.  32;  G-Doititle  v.  Whitby,  1  Burr.  228; 
Matthew  Manning's  case,  8  Rep.  95  b  ;  Drake 
V.  Pell,  3  Edw.  253;  Ferson  v.  Dodge.  23 
Pick.  287.     See  Rich  v.  Waters,  22  Pick.  563 : 


Boraston's  case,  3  Rep.  19;  Fearne,  368; 
Arnold  v.  Arnold,  11  B.  Mon.  81;  Huorhes  v. 
Hughes,  12  III.  115;  Taylor  v.  Frobisher,  10 
Eng.  L.  &  Equ.  116;  Maxwell  v  Mc'Olin- 
tock,  10  Barr,  237  ;  Hau:gard  v.  Rout,  6  B. 
Mon.  247;  Childs  v.  Russell,  11  Met.  16; 
Danforth  v.  Talbot,  7  B.  Mon.  623. 

(5)  Mansfield  v.  Dugard,  1   Abr.   Eq.  195 ; 
Phipps  V.  Akers,  4  Mann.  &  G.  1107. 


(a)  Soraetimes  called  adverbs  of  time,  as  when,  then,  after,  from,  <i:c.     Johnson  v.  Valentine, 
4  Sandf.  36. 


CHAP.  XUl.]  AND  CONTINOENT  HKMAIXDRRS.  525 

B.  A  diet!  without  i.<sue  male.  Held,  B's  estate  vested,  the  circum- 
stance of  A's  having  issue  not  being  a  coiidiiion  ])recedent.(l) 

85.  Devise  to  A  for  life,  then  to  B;  and  if  my  three  (hiughters,  or 
either  of  them,  overlive  A  and  B,  and  his  heirs,  then  they  to  have  it: 
and  after  them  to  C.  B  and  two  of  the  daughters  died,  living  A. 
Held,  this  was  not  a  contingent  limitation,  but  only  a  desigmition  of 
the  lime,  when  a  vested  remainder  should  become  an  estate  in  posses- 
sion.(2) 

Si).  Devise  to  the  testator's  wife  for  life,  "  to  be  for  her  own  comfort, 
ike,  while  she  remains  my  widow,  without  any  disturbance,  &,e.,  Irom 
any  of  my  children  ;  and  in  case  she  alters  her  condition  by  marriage, 
then  my  said  estate  I  will  shall  be  divided  as  the  law  directs."  Held, 
the  testator's  children  took  a  vested  remainder  at  his  death. (8) 

87.  Devise  to  four  children  of  the  testator  of  four  several  estates,  lo 
each,  one  estate,  and,  when  either  of  them  shall  die,  the  said  estates  to 
be  equally  divided  among  them  that  are  living.  The  eldest  son  and 
heir  died."^  Held,  the  remainder  to  the  other  children,  in  the  estate  given 
for  life  to  this  son,  was  not  contitigent  but  vested,  and  therefore  was 
not  void,  in  consequence  of  a  merger  of  the  son's  life  estate  in  the  in- 
heritance which  descended  to  him.(4) 

38.  Devise  to  trustees,  in  trust,  to  apply  the  proceeds  to  the  support  and 
education  of  children  during  minority  ;  and  when  and  as  they  should 
come  of  age,  to  the  use  and  behoof  of  them  and  their  heirs.  Held,  the 
children  took  an  immediate  gift,  with  a  trust  interest  during  minority. (5) 

89.  Devise  to  tlie  wife  of  the  testator,  of  the  use  and  improvement 
of  one  third  part  of  his  estate  for  life;  "  and  I  give  and  devise  the 
same,  at  her  decease,  to  my  children"  in  fee.  Held,  the  children  took 
a  vested  remainder.(6) 

40.  Devise  to  the  testator's  three  illegitimate  sons,  "  if  they  should 
live  to  come  of  age."  Held,  whether  the  sons  took  a  vested  remainder, 
to  become  a  vested  estate  afterwards,  or  only  a  contingent  remainder ; 
they  had  no  estate  in  possession  till  they  came  of  age,  and,  interme- 
diately, the  land  descended  to  the  heir  at  law.(7) 

41.  Devise  of  certain  specified  lands  to  the  use  of  the  testator's  wife 
for  life,  and  of  all  the  testator's  lands  to  A  in  fee ;  but,  if  he  shall  not 
live  to  be  of  age,  then  in  like  manner  to  his  surviving  brother,  C  ;  but 
if  C  shall  die  before  of  age,  then,  &c.,  to  his  surviving  brother,  D  ;  but 
if  D  should  die,  &c.,  then  to  the  first  surviving  son  of  E,  in  fee;  for  de- 
fault of  such  issue,  remainder  to  the  testator's  own  right  heirs  forever. 
If  the  wife  shall  die  before  A,  or  before  his  survivor  is  of  age,  to 
tiike  possession,  then  E  to  have  the  use  and  benefit  of  the  lands,  till 
the  testator's  heir  shall  be  of  age  to  take  possession.  The  wife  and  E 
botli  died  before  A  came  of  age.  Held,  upon  the  death  of  the  widow, 
the  estate  did  not  descend  to  the  heirs  at  law,  until  A  came  of  age, 
but  immediately  vested  in  him  ;  that,  as  the  devise  to  E  of  the  use  of 
the  land  after  the  widow's  death,  till  A  should  come  of  age,  failed  by 
the  death  of  E,  it  should  be  considered  as  out  of  the  case  ;  and  that  the 
object  of  this  devise  to  E  (who  was  the  mother  of  A,)  was  not  to  beue- 

(1)  ITolcrofl's  case,  Moore,  4SG.  I  T.  Jones,  19;   2  Ventr.  365. 

(2)  Webb  I'.  HonrinK',  Cro.  Jaa  41G.  (5)  Goodtitlo  v.  Wiiitbv.  1  Burr.  228. 

(3)  Bates  v.  Webb,  8  Mhss.  458.  (6)  Nash  v.  Cutler,  ic'riek.  491. 

(4)  Foriescue  v.    Abbott,   Pollexfen,  479;  I      (7)  Jackaon  v.  Wiune,  7  Woud.  47. 


526  REMAINDER— VESTED  [CRAP.  XLII. 

fit  her,  but  to  enable  her  to  take  the  profits  of  the  hind  during  A's  mi- 
nority.(1) 

42.  Devise  substantially  as  follows  :  "  all  my  debts  to  be  paid  from 
my  personal  estate,  the  remainder  I  give  to  my  wife  for  the  support  of 
her  and  my  minor  children  during  her  widowhood,  and  the  estate  to 
remain  undivided  till  my  youngest  child  shall  come  of  age.  But  if  my 
wife  should  be  still  living  and  my  widow,  she  shall  have  the  whole  in- 
come of  my  estate,  keeping  it  in  repair,  &c. ;  but  if  she  marry,  she  shall 
have  £30  per  annum  from  my  estate  for  life.  And  it  is  my  will,  that 
all  my  children  shall  have  an  equal  share  of  the  whole  of  my  estate 
that  I  now  possess,  or  may  possess  at  my  death,  at  the  time  before 
mentioned  for  division  ;  and  should  any  of  them  die  without  heir  law- 
fully begotten,  their  share  shall  be  equally  divided  amongst  the  sur- 
viving children."  Held,  the  estate  devised  to  the  children  did  not  re- 
main contingent  till  the  death  of  the  widow,  or  the  coming  of  age  of 
the  youngest  child ;  but  immediately,  upon  the  testator's  death,  they 
took  a  vested  remainder^  though  not  to  take  effect  in  possession  till  the  hap- 
pening of  the  last  of  the  events  referred  to.(2)(a) 

48.  Where  there  is  a  devise  to  trustees  and  their  heirs  during  the 
minority  of  A,  then  to  him  in  fee,  or  upon  trust  to  convey  to  him; 
inasmuch  as  A  takes  a  vested  remainder,  to  vest  in  possession  upon 
his  coming  of  age,  the  trustees  have  been  held,  notwithstanding  the 
words  of  inheritance,  to  take  only  an  estate  for  so  many  years  as 
the  minority  of  A  shall  last.  But  this  doctrine  has  been  questioned, 
as  an  anomaly  in  the  law  ;  and  held  wholly  inapplicable  to  limitatious 
by  deed. (8) 

44.  Upon  the  above-named  principle,  where  land  is  given  to  one 
for  life,  or  any  other  estate  upon  which  a  remainder  may  be  limited, 
and  after  the  determination  of  that  estate  to  a  person  sustaining  a 
given  character,  as  heir  at  law,  heir  male^  or  next  of  kin,  of  the  testator, 
or  of  another ;  the  remainder  will  vest  in  the  person  or  persons  who 
fill  that  character  at  the  death  of  the  testator^  and  not  remain  contingent 

(1)  Jackson  u  Durland,  2  John.  Cas.  314.  i  v.    Niebolls,    1    Barn.   &   Cr.  336;    Cornish, 

(2)  Tatem  v.  Tatem.  1  Miles,  309.  105-7  ;   Doe  v.  Lea,  3  T.  R.  41. 

(3)  Sl:>Dley  v.  Stanley,   16  Ves.  491;  Doe  I 


(a)  Devise  to  A  for  life,  and  after  his  death  to  three  others,  or  the  survivors  or  purvivor 
of  them,  their  heirs  and  assigns  forever.  Held,  these  were  vested,  not  continfjent  re- 
mainders, so  that,  if  a  remainder-man  died  before  the  tenant  for  lile.  his  heirs  would  inlierit 
his  interest.  Moore  v.  Lyons,  25  Wend.  119.  See  Doe  v.  Prigo:,  8  Barn.  &  C.  231  ;  King 
V.  King-,  1  Watts  &  Serg.  205 ;  People  v.  Couklin,  2  Hill,  67.  But  see  also  Cripps  v.  Wol- 
cott,  4'Madd.  11. 

Devise  to  the  wife  of  the  testator  for  her  life  or  widowhood;  upon  her  death  or  marriage 
the  property  to  be  sold,  and  the  proceeds  divided  among  his  children.  Held,  his  childien 
who  survived  him  took  a  vested  remainder.     M'Ginnis  v.  Foster,  4  Geo.  377. 

Devise  to  a  wife  for  life,  at  her  death  the  property  to  be  equally  divided  among  all  the 
testator's  surviving  children,  and  the  legal  representatives  of  tiiose  deceased.  Held,  the 
wonls  of  survivor.^hip  referred  to  the  death  of  the  testator,  not  of  the  tenant  for  life;  and 
that  all  the  testator's  children  living  at  liis  deatli  took  vested  remainders,  to  be  enjoyed 
after  the  death  of  the  tenant  for  life.     Vickers  v.  Stone,  4  Geo.  461. 

Devise  to  a  wife  for  life,  then  to  be  sold  at  her  death,  and  tlie  proceeds  to  be  distrihuted 
among  children.  One  of  tliem  died  before  the  tenant  for  life.  Held,  his  interest  in  the 
estate  was  vested,  and  liable  for  his  debts.     Field  v.  Hallowell,  12  B.  Mon.  517. 

Devise  for  life,  with  intermediate  remainders:  then  to  "such  person  of  tiie  surname  of  H, 
as  shall  he  the  nearest  male  relation  to  A  and  liis  heirs."  Held,  the  last  remainder  vested 
at  the  testator's  death.     Stert  v.  Platel,  7  Scott,  422. 


CHAP.  XLTT.]  AND  COXTIXOKNT  RKMAINDKRS.  527 

till  llie  tenninalion  of  the 2^1'ior  e^Uitc,  unless  there  is  a  clear  iiiteiilioii  to 
the  contrary. (I)  But  it  is  said,  thai  the  construction  by  which  a  limita- 
tion, to  take  ellect  infnluro,  is  construed  as  a  vested,  and  not  a  contin- 
gent remainder,  cannot  be  adopted,  unless  there  is  an  intermediate  dis- 
position of  the  estate,  or  the  rents  and  profits,  or  a  direction  that  it  shall 
go  over,  upon  the  party's  dying  before  the  specified  tinie.  Oulierwise, 
the  limitation  must  take  efi'ect,  if  at  idl,  as  an  executory  it(JVise.(2)(rt) 

45.  A  remainder  is  sometimes  contingent  upon  a  condition  subsequent, 
which  operates  to  defeat  it  after  being  vested,  instead  of  a  condition 
precedent,  the  performance  of  which  is  necessary  to  its  vesting.  But 
it  is  .said,  a  remainder  cannot  be  thus  divested,  unless  there  are  words 
in  the  will  capable  of  producing  this  eflect,  and  showing  such  inten- 
tion. Of  this  nature  is  a  limitation  subject  to  a  power  of  ap^joiutment. 
Thus,  if  an  estate  be  limited  to  A  for  life,  remainder  to  such  use  as  A 
shall  appoint,  and  in  default  of  appointment,  remainder  to  B  ;  B's  re- 
mainder is  vested,  but  subject  to  be  defeated  by  execution  of  the 
power.(3) 

46.  Limitation  to  the  use  of  A  for  life ;  after  his  death,  of  B  in  fee, 
if  B  should  live  to  be  of  age;  provided  and  on  condition,  that  if  B 
should  die  under  age,  remainder  over.  Held,  the  remainder  vested  in 
B,  subject  to  be  divested  by  his  dying  under  age.(4) 

47.  Devise  to  A  for  life,  and,  on  his  death,  to  and  amongst  his 
children,  equally,  at  the  age  of  twenty-one,  and  their  heirs,  but  if 
only  one  child  shall  live  to  be  of  age,  to  him  and  his  heirs  at  the  age 
of  twenty -one.  And  if  A  die  without  issue,  or  such  issue  die  before 
twenty-one,  devise  over.    Held,  A's  children  took  a  vested  remainder.(5) 

48.  Devise  of  land  to  A  ibr  the  purpose  of  building  a  school-house, 
provided  it  should  be  built  in  a  certain  place ;  and  of  the  residue  of 
the  testator's  property  to  B.  A  took  possession,  but,  after  B's  death, 
forfeited  by  V^reach  of  condition.  Held,  B  had  a  contingent  interest, 
which  passed  to  her  heirs.(6) 

49.  Upon  the  same  principle,  a  remainder  once  vested  may  be 
defeated  only  in  ixirt  by  the  happening  of  a  subsequent  event.  Thus, 
where  there  is  a  devise  to  A  for  life,  remainder  to  his  children  ;  the 
children  of  A,  living  at  the  death  of  the  testator,  take  vested  remain- 
ders, subject  to  be  disturbed  by  after-born  children,  for  whose  benefit  the 
estate  will  open,  and  let  them  in  to  take  their  proportional  shares.(7)(6) 

kins  V.  Beane,  14,  404:  Denny  v.  Allen;  1 
Pick.  147  ;  Right  v.  Creber,  5  B.  &  C.  866 ; 
Sisson  V.  Seabury,  1  Sumn.  243  ;  llannan  v. 
Osborn,  4  Paifre,  336 ;  Nodiiio  v.  Grecnlield, 
7  Paige,  544 ;  Turner  v.  Patterson,  5  Dana, 
235 ;  Haywood  v.  Moore,  2  llumpli.  584 ; 
Baker  r.  Lorillard,  4  Comst.  257  ;  Join. son  r. 
Valentine,  4  Sandf.  36 ;  Carpenter  v.  Sclier- 
nierliorn,  2  Barb.  Cli.  314;  AVilliamson  t'. 
Field,  2  Sandf.  Cli.  533  ;  Conkliu  v.  Conk- 
lin,  3,  64 ;  Minniug  v.  BatdorlT,  5  Barr,  603. 


n)  Doo  V.  .Spratt,  5  Barn.  &  Add.  739. 

(2)  4  Kent,  206. 

(3)  Driver  v.  Frank,  6  Price,  73-5  ;  Pack- 
ard V.  Packard,  16  Pick.  191  ;  4  Kent,  204. 

(4)  Edwards  v.  Hammond,  1  Bos.  &  Pul. 
N.  R.  3  J  3. 

(5)  Doe  V.  Newell,  1  M.  k  S.  327  ;  Ran- 
dall V.  Doe.  5  Dow.  202. 

(G)  Cl.ipp  V.  ytougliton,  10  Pick.  463.  See 
Austin  V.  Oambridgcport.  Ac,  21,  215. 

(7 )  F.-arne,  394-G :  Doe  t-.  Perryn,  3  T.  R. 
484 ;  Diugley  v.  Dingley,  5   Moss.  535 ;  At- 


(a)  In  the  case  of  Doe  v.  Lea,  (3  T.  R.  41.)  a  distinction  was  made,  in  reference  to  the 
point  above  considi.Ted,  between  the  expressions  "  when  and  so  soon  as,'  and  the  word 
"ir,"  which,  ill  Browiiswords  v.  Edwards,  (2  Ves.  243,)  was  held  to  create  a  condition  pre- 
cedent.   But  this  distinction  seems  to  have  been  disregarded  in  several  subsequent  decisions. 

(6)  The  general  rule  is  stated  to  be,  that  where  there  is  a  devise  to  a  clans  0/  persous,  to 
take  effect  in  enjoyment  at  u  future  period,  the  estate  vests  in  the  persons  as  they  come  in 


528  REMAINDER— VESTED  [CHAP.  XLU. 

50.  Devise  of  all  the  remainder  of  my  estate  to  my  daughter,  A, 
and  the  children  born  of  her  body,  including  all  my  wife  has  the 
improvement  of,  during  her  life,  after  her  decease.  A  had  three 
children  when  the  will  was  made,  and  a  fourth  was  born  afterwards, 
all  of  whom  survived  the  testator,  and  two  more  were  born  after  his 
death.  Held,  the  children  of  A,  living  at  the  testator's  death,  took 
a  vested  remainder  in  that  portion  of  the  estate  devised  to  A  for  life, 
which,  upon  the  birth  of  the  other  children,  opened  and  let  in  their 
shares.(l) 

51.  Devise  to  A  for  life,  and,  immediately  after  her  death,  unto  and 
among  all  and  every  such  child  or  children,  as  she  shall  have  law- 
fully begotten  at  the  time  of  her  death,  in  fee-simple,  &c.  Held,  a 
vested  remainder  was  hereby  given  to  every  child  of  A,  subject  to 
be  in  part  divested  by  the  birth  of  subsequent  children  ;  and  that, 
upon  the  death  of  a  child  during  A's  life,  his  interest  descended  to 
his  heirs.  The  decision  was  founded,  in  part  at  least,  upon  the  pre- 
sumed intentions  of  the  testator  in  favor  of  his  grandchildren. 
Spencer,  J.,  dissented. (2) 

52.  A  devised  to  B  for  life,  and  after  her  death  to  C,  to  have  the  im- 
provement to  her  and  her  heirs,  during  her  natural  life  ;  and  declared, 
that  after  C's  death,  D,  her  son,  should  be  sole  heir  of  the  estate.  D 
died  about  a  month  after  the  testator,  leaving  a  sister,  E  ;  and  four 
years  after  his  death,  two  other  sisters,  F  and  G,  were  born.  Held,  D 
took  a  vested  remainder  in  fee,  to  take  effect  upon  the  termination  of 
two  preceding  life  interests  ;  that  on  D's  death  his  title  passed  to  E ;  and 
that  after  the  birth  of  F  and  G,  they  took  as  joint  heirs  with  her  under 
the  devise.(o)(a) 

(1)  Annable  v.  Patch,  3  Pick.  360.  I      (3)  Throop  v.  Williams,  5  Conn.  98. 

(2)  Doe  V.  Provoost,  4  John.  61.  | 

esse,  subject  to  open  and  let  in  others,  as  they  are  born  afterwards.     Johnson  v.  Valentine 
4  Sandf.  36. 

(a)  Devise  to  the  testator's  eons,  for  ten  years,  of  the  improvement  and  income  of  a  farm. 
Then  to  his  grandchildren,  the  sous  and  daughters  of  said  sons,  after  the  expiration  of  ten 
years,  all  the  lands,  &c.,  of  which  the  improvement  for  ten  years  has  been  given  to  said 
Bons,  in  fee.  Held,  this  passed  a  vested  remainder  to  those  grandchildren  living  at  the  tes- 
tator's death,  suVject  to  open  and  let  in  those  born  afterwards,  whether  before  or  after  the 
termination  of  the  particular  estate;  and  that  the  share  of  a  grandchild,  living  at  the  testa- 
tor's decease,  but  who  died  during  the  particular  estate,  descended  to  his  father  as  heir. 
Ballard  v.  Ballard,  18  Pick.  41. 

Devise  to  the  testator's  son,  A,  for  life,  if  unmarried;  if  married  and  having  children,  to 
him,  his  heirs,  &c. ;  if  he  die  unmarried,  without  childen,  equally  among  the  children  of  the 
testator's  sons,  B,  C  and  D.  A  survives  the  testator,  and  dies  unmarried.  B,  C  and  D  had 
children  at  the  testator's  death,  and  born  afterwards,  some  of  whom  died  unmarried,  minors, 
during  their  father's  lives,  before  A's  death.  Held,  A  took  a  life  estate;  the  children  living 
at  the  testator's  death  took,  jjer  capita,  vested  remainders,  which  opened,  and  let  in  after- 
born  children ;  and  the  shares  of  the  children  of  B,  C  and  D,  who  died,  living  A,  passed  to 
their  fathers.     Weston  v.  Foster,  7  Met.  297. 

Devise  to  A,  and  his  wife  B,  and  C,  and  their  heirs  forever,  "  to  have  and  to  hold  to  the 
said,  &c.,  and  to  the  survivor  or  survivors  of  them,  and  to  the  heirs  of  such  survivor,  as 
joint  tenants,  and  not  as  tenants  in  common,  in  trust  to  receive  the  rents,  issues,  and  profits 
thereof,  and  to  pay  the  same  to  D  during  his  natural  life,  and  from  and  after  the  death  of 
D,  in  further  trust,  to  convey  the  same  in  fee  to  the  lawful  issue  of  the  said  D,  living  at  his 
deatii."  Held,  the  first  born  child  of  D,  at  its  birth,  took  a  vested  estate  in  remainder, 
which  opened  to  let  in  his  other  children  as  they  were  successively  born,  and  such  vested 
remainder  became  a  fee-simple  absolute,  in  the  children  living,  on  the  death  of  their  father. 
Williamson  v.  Berry,  8  How.  (U.  S.)  495. 

A  devised  as  follows  :   "  If  I  should  have  no  child  by  my  wife  B,  I  do  then  give  the  use 


CHAP.  XLII.]  AND  CONTIXGENT  liKNf AINDERS.  529 

53.  'J'he  same  princij)le  has  been  applied  even  in  case  of  a  deed.  A, 
in  eonsideraticM)  of  a  sum  of  money  anil  of  natural  love,  conveyed  to 

B,  and  C,  his  wife,  the  daughter  ol"  A,  and  to  the  children  and  lieirs  of 
C  and  their  heirs,  &c.,  habendian  to  B  and  C,  and  to  the  children  and 
heirs  of  C,  for  the  proper  use,  &c.,  of  B  and  C,  for  their  joint  lives  and 
that  of  the  survivor,  and  immediately  from  the  decease  of  such  sur- 
vivor, to  and  lor  the  use,  &;c.,  of  the  children  and  heirs  ofthe  body  of 

C,  in  fee,  as  tenants  in  common,  kc.  C  had  three  children  at  the  exe- 
cution of  the  deed  ;  and  subsequently  several  chddren  and  grand- 
chihlren  were  born.  Held,  a  remainder  vested  in  the  three  children,  and , 
upon  the  birth  of  the  others,  openeil  and  admitted  them  to  their  shares; 
and  that  the  share  of  any  child,  who  died  living  B  or  C,  vested  in  the 
issue  of  such  child.(l) 

64.  So,  where  an  estate  is  limited  by  deed  of  uses  to  parents  during 
their  lives,  and  then  to  the  use  and  behoof  of  such  child  or  children 
as  may  be  procreated  between  them,  and  to  his,  her  and  their  heirs 
and  assigns  forever;  there  is  a  remainder  in  fee  to  the  children,  which 
ceases  to  be  contingent  upon  the  birth  of  the  first,  and  opens  to  let  in 
the  after-born  children.  The  general  rule  of  law,  founded  on  public 
polic}',  is,  that  limitations  of  this  nature  shall  be  construed  to  be  vested, 
when  and  as  soon  as  they  may.(2) 

55.  Devise  to  trustees,  in  trust  to  permit  A  to  receive  the  rents  for 
life;  and,  after  her  death,  devise  "  to  the  heirs  of  the  body  of  A,  share 
and  share  alike,"  in  fee.  At  the  testator's  death,  A  had  one  child,  and 
others  were  born  afterwards.  Ileld,  by  the  "  heirs  of  the  body"  was 
meant  c/uldren,  and  that  the  first  child  took  a  vested  remainder  in  fee, 
which,  upon  the  birth  of  others,  opened  and  let  them  in.(8) 

5f>=  Devise  to  A  for  life,  remainder  to  the  "  second,  third,  fourth,  and 
all  and  every  other  the  sons  of  A,  {except  the  first  or  eldest  son,)  succes- 
sively in  tail  male,"  remainder  over.  At  the  testator's  death,  A  had  no 
children.  Ileld,  the  remainder  was  contingent  till  A  had  two  sons, 
both  living,  and  then  became  vested,  and  not  subject  to  be  divested  by 
subsequent  changes  in  the  fii'.nily  of  A. (4) 

57.  It  follows,  i'rom  the  doctrine  above  laid  down,  that,  where  the  par- 
ticular estate  terminates,  before  the  time  within  which  the  condition 
may  happen  that  is  to  defeat  the  remainder,  the  remainder  shall  still  be- 
come a  vested  estate,  liable  to  be  defeated  by  the  happening  of  the 
con<lition. 

58.  Devise  to  A  for  life,  after  his  death  to  B,  if  he  live  to  be  of  age. 
A  dies,  living  B.  B  takes  a  vested  estate,  determinable  on  his  dying 
under  age. (5) 

(1)  Wager  v.  Wager,  1  S.  k  R.  374.  I      (4)  Driver  v.  Frank,  6  Price,  41. 

(2)  Carver  v.  Jackson,  4  Pet.  90-1-2.  j      (5)  Bromlleld  v.  Crowder,  1  B.  k.  P.  N.  R. 

(3)  Riglil  t;.  Oreber,  5  Burn.  4  Cress.  8C6.       313-4;  (Doe  t;.  Moors,  15  K.  601.) 

of  all  mj  personal  estate  not  mentioned  to  my  daughter  C,  during  lier  natural  life,  at  her 
decease  to  be  equally  divided,  share  and  share  alike,  amongst  all  her  children,  to  them  and 
their  heirs;  and  if  I  should  liavo  no  child  by  my  wife,  I  do  then  give  and  bequeath  liio  use 
of  all  my  estate,  both  real  and  personal,  to  C  during  her  life,  and  at  her  decease  to  be  equally 
divided  amongst  her  children,  to  them,  Ac;  if  I  should  leave  no  ciiildren,  and  my  daughter 
should  die  and  leave  no  children,  then,  at  the  decease  of  my  wife,"  over.  Held,  at  the 
death  of  A,  without  other  children,  those  of  his  daughter  took  a  vested  remainder,  which 
opened  to  let  in  after-born  children.     McGregor  v.  Toomer,  2  Strobh.  Eq.  51. 

Vol,  L  34 


530 


REMA.INDER— YOID  CONDITIONS. 


[CHAP.  XLIII. 


59.  As  a  remainder  will  not  be  construed  to  be  contingent,  where  it 
can  be  construed  as  vested  ;  so  a  vested  remainder  will  not  be  divested, 
without  a  special  provision,  or  a  clear  intention,  to  that  efFect.(l)  It 
Las  been  said,  however,  that  the  principle  of  favoring  vested  estates  is 
an  entirely  technical  rule. (2) 


CHAPTER   XLIII. 


REMAINDER— YOID  CONDITIONS. 


2.  Illegalit}'. 

4.   Remoteness  of  probability. 
7.  Abridgment,  &c.,  of  preceding  estate. 
14.  Or  of  preceding  remainder. 


16.  Exception — enlargement  of  prior  es- 
tate. 
19.  Devise — conditional  limitation. 
23.  Limitation  by  way  of  use. 


1.  There  are  several  circumstances,  pertaining  to  the  condition  upon 
which  a  contingent  remainder  is  limited,  that  will  render  such  limita- 
tion void, 

2.  The  contingency  must  be  a  lawful  act.  The  law  will  never  adjudge 
a  grant  good,  by  reason  of  a  possibility  or  expectation  of  a  thing  which 
is  against  law  ;  for  it  is  "pofej/iwz  remotissiraa  et  vana,^^  which,  by  intend- 
ment of  law,  "^  nunquam  venit  in  actum  ;^^  besides  being  against  public 
policy.  (3) 

3.  Hence  a  limitation  to  a  bastard  is  void.  So  a  limitation  to  the 
children,  legitimate  or  illegitimate,  of  A,  by  the  grantor,(4) 

4.  The  contingenc}'  must  be  not  a  remote^  but  a  near  or  common  pos- 
sibility. And  the  ordinary  legal  distinction  between  these  two  kinds 
of  possibility  is,  that  the  latter  is  single  and  depends  on  only  one  uncer- 
tain event,  while  the  former  is  double,  depending  on  more  than  one, 
which  are  not  independent,  but  the  one  requiring  the  previous  exis- 
tence of  the  other,  and  yet  not  necessarily  arising  out  of  it.(5) 

5.  Thus,  a  limitation  to  the  heirs  of  A,  there  being  at  the  time  no 
such  person  as  A,  is  void,  though  A  should  be  born  and  die  duriug 
the  particular  estate;  because  there  is  first  the  contingency,  whether 
there  would  be  any  such  person ;  and  second,  whether  he  would  die 
during  the  continuance  of  the  prior  estate.(6) 

6.  A  limitation,  during  the  vacation  of  a  mayoralty,  to  A  for  life, 
remainder  to  the  mayor  and  commonalty  in  fee,  is  good  ;  buc  a  limita- 
tion to  a  corporation  not  in  existence  at  the  time,  though  afterwards 
created,  is  void.  So,  a  limitation  to  the  right  heirs  or  the  first  born 
son  of  A,  not  naming  them,  is  good  ;  but  a  limitation  to  B,  the  first 
born  son  of  A,  is  void,  because  there  is  first  the  contingency  of  A's 
having  a  son,  and  second,  of  his  being  named  B,  which  is  a  possibility 
upon  a  possibility.(7) 


(1)  Doe  V.  Perryn,  3  T.  R.  494;  Drivers. 
Frank,  3  M.  &  S.  25. 

(2)  6  Price,  73. 

(3)  Ciiolmley's  ease,  2  Rep.  51  b. 

(4)  Blodwell  V.  Edwards,  Cro.  Eliz.  509. 


(5)  Co.  Lit.  25  b;   184  a;  2  Rep.  51  a; 
Fearne,  378. 

(6)  Ciiolmley's  case,  2  Rep.  51  b. 

(7)  Co.    Lit.    264   a ;    2    Rep.    61    a,    b; 
Fearne,  378. 


CHAP.  xLiri] 


RKMAINDKR— VOID  CONDITIONS. 


531 


7.  A  rcinaiiulcr  cannot  bo  validly  limited  upon  an  event,  wliiclj  will 
operate  to  abridge,  defeat,  ordeterniinc  the  preceding  estate;  but  mu.st 
be  so  limited,  as  to  take  edtict  only  upon  the  natural  exj)iratiou  of  such 
estate.  This  rule  is  founded  on  the  principle  heretofore  stated,  that 
the  benefit  of  a  condition  can  be  reservecl  only  to  the  grantor  or  his 
heirs,  who  shall  take  advantage  of  any  breach  by  entry.  The.  effect  of 
such  entry,  is  to  revest  the  estate,  avoiding  not  only  tliti  particular 
estate,  but  also  the  remainder  limited  upon  it.(l) 

8.  Conveyance  to  A  for  life,  on  condition  that,  if  B  pay  tho  grantor 
a  certain  sum,  then  the  Land  shall  immediately  remain  to  him.  The 
remainder  is  void. (2) 

S.  Conveyance  to  A  and  B,  remainder  over,  after  the  death  of  A,  to 
C  in  fee.  This  remainder  is  voiti,  because  repugnant  to  the  rights  of 
B  as  survivor  of  A,  by  virtue  of  the  first  limitation. (3) 

10.  Conveyance  to  A,  a  widow,  for  life,  remainder  to  B,  in  fee,  on 
condition  that  A  continues  a  widow.  This  remainder  is  void,  because 
an  entry,  upon  A's  marrying,  to  defeat  her  estate,  would  defeat  the 
remainder  also.  But  a  grant  to  A  during  ividowhood,  remainder  to  B 
upon  A's  marriage,  makes  a  limitation^  which  will  take  efiect  by  its 
own  operation  without  entry,  and  therefore  the  remaindc-r  is  good. (4) 

11.  Where  the  words  used  may  be  construed  to  change  a  contingent 
remainder  into  a  vested  remainder,  instead  of  converting  a  vested  re- 
mainder into  a  vested  estate,  and  thereby  defeating  a  prior  limitation ; 
this  construction  will  be  given. 

12.  Limitations  to  A  for  life,  remainder  to  B  for  life  ;  if  B  die,  living 
A,  the  lands  to  remain  to  C.  Held,  the  last  limitation  was  valid,  hav- 
ing no  effect  to  abridge  A's  estate.(5) 

18.  It  is  to  be  observed  also,  that  there  is  a  distinction  between  con- 
ditions which  operate  to  abridge  or  defeat  a  prior  vested  estate,  and 
tho.se  which  merely  provide  in  what  manner  estates  shall  go  over, 
which,  hy  virtue  of  tlie  prior  limitation  itself,  are  made  dependent  upon  a 
eonditicm.  Thus,  if  land  be  limited  to  A  for  twenty-one  years,  if  B 
shall  so  long  lice,  and,  in  case  of  B's  death  during  the  term,  to  C  in  fee  ; 
this  is  a  good  remainder  ;  for  the  condition  does  not  abridge  an  absolute 
estate  for  years  once  vested,  but  a  contingency  is  annexed  to  the  estate 
for  years  itself.  It  must  be  admitted,  however,  that  the  dividing  line 
between  conditions  always  allowed  to  be  valid,  and  those  which  are 
said  to  be  void,  as  abridging  the  prior  estate,  is  extremely  nice.  The 
following  remarks  of  Mr.  Douglas,  in  a  note  to  the  case  of  Goodlille  v. 
liiUiiigton,{Vi)  throw  some  light  upon  the  subject.  He  remarks,  that  a 
limitation  does  not  cease  to  be  a  remainder,  because  it  may  vest  in 
possession  on  an  event,  which,  from  tJie  terms  or  from  the  legal  nature  of 
the  original  limitation,  shall  defeat  the  particular  estate  before  its  natural 
or  regular  expiration.  Every  remainder,  limited  after  an  estate  for  life, 
mav  vest  in  possession  before  the  death  of  the  tenant  for  life,  which 
is  tho  term  of  the  natural  expiration  of  the  particular  estate  ;  namely, 
in  consequence  of  any  forfeiture  which  he  may  commit.  Some  have 
been  inclined  to  consider  conditional  limitations  after  particular  estates, 


(1)  1  Cruise,  276;  4  Kent,  249-263. 

(2)  Colthiret  v.  Bojualnu,  Plow.  29 ;  Brent's 
case.  2  Leon.  16. 

(3)  Plow.  24. 


(4)  Hardy  V.  Seyer,  Cro.  Kiiz.  414;  Feurno 
363. 

(5)  Coltliir.xt  V.  Bejushin,  Plow.  23. 

(6)  Doug.  755. 


532  BEMAINDER— YOID  CONDITIONS.  [CHAP.  XLIII. 

as,  for  instance,  ufter  an  estate  for  life,  but  limited  to  vest  in  possession 
on  a  contingency  which  may  happen  before  the  death  of  tenant  for  life, 
as  not  being  remainders.(l)  Thus,  if  an  estate  is  given  to  A  for  life, 
provided  that  when  C  returns  from  Rome,  it  shall  thenceforth  be  to 
the  use  of  B  in  fee,  it  is  said,  this  limitation  over  is  not  confined  to  the 
remnant,  expectant  on  the  particular  estate  before  given  to  A,  but  may 
interfere  with,  and  in  part  defeat  and  supersede  that  first  estate,  instead 
of  awaiting  its  regular  determination  ;  and  therefore  it  does  not  answer 
the  definition  of  a  remainder  in  Co.  Lit.  143  a..  But  this  seems  too 
great  a  refinement.  Every  estate  for  life  may,  by  the  act  of  the  tenant, 
be  defeated  and  abridged,  before  its  regular  expiration,  and  thereby  let 
in  the  remainder  over  in  the  manner  above  stated  ;  and  the  only  differ- 
ence between  such  limitations  and  the  others  is,  that  in  the  others,  the 
estate  for  life  is  not  abridged  by  the  act  of  the  tenant  for  life,  but  by 
some  extrinsic  event,  which  happens  also  to  be  the  contingency  on 
which  the  limitation  over  depends.  What  difference  more  than  what 
is  merely  verbal,  can  there  be  shown  to  be,  between  an  estate  to  A  till 
B  relurns  from  Rome,  then  to  remain  over  to  C ;  and  an  estate  to  A,  pro- 
vided that,  when  C  returns  from  Rome,  it  shall  thenceforth  be  to  B. 
Under  both  forms  of  expression,  A  takes  an  estate  for  life,  defeasible 
on  the  very  same  event.  And  Mr.  Fearne  himself  adduces  the  former, 
as  an  example  of  contingent  remainder.  Nor  can  it  make  any  difference, 
whether  tlie  prior  estate  is  limited  generally,  or  expressly  for  life ;  be- 
cause, in  the  former  case  a  life  estate  is  implied. 

14.  A  condition,  the  effect  of  which  is  to  defeat  or  abridge  one  vested 
remainder  and  substitute  another  for  it,  is  void. 

15.  A  conveys  to  B  for  life,  remainder  to  C  for  life,  provided  that  if 
A  should  have  a  son  who  should  reach  a  certain  age,  then  C's  estate 
should  cease,  and  the  land  remain  to  such  son.  The  latter  remainder 
is  void. (2) 

16.  It  has  been  said,  that  the  rule  above  stated  does  not  apply  to 
the  case  where,  although  in  terms  the  condition  on  which  the  remain- 
der shall  take  effect  will  abridge  the  particular  preceding  estate,  yet  in 
effect  it  will  merely  operate  to  enlarge  such  estate  ;  in  other  words, 
where  the  remainder-man  and  the  particular  tenant  are  one  and  the 
same  person.  In  such  case,  no  injury  arises  to  the  preceding  tenant, 
and  no  entry  on  the  part  of  the  grantor  or  his  heirs  is  necessary  to 
defeat  the  preceding  estate,  at  the  same  time  defeating  the  remainder 
also.  The  operation  is  the  same  as  if  the  remainder  were  limited  to 
take  effect  upon  the  determination  of  the  prior  estate  by  its  own  limi- 
tation. Thus,  if  a  conveyance  be  made  to  A  and  B,  remainder  in  fee 
to  the  survivor,  this  remainder  is  valid. (3) 

17.  In  illustration  of  this  exception  to  the  general  rule,  the  case  of 
Ooodtitle  v.  Billii'tjton{4i)  is  cited.  This  was  a  devise  to  the  testator's 
wife.  A,  and  his  daughter  B,  for  their  lives,  and  the  life  of  the  survivor, 
in  equal  proportions — but  if  B  marry  and  have  lawful  issue,  then,  after 
the  death  of  A,  to  B  in  fee.  But  if  B  die  unmarried  and  without 
lawful  issue,  to  A  in  fee.  A  an<l  B  both  survived  the  testator,  and 
B  survived  A,  but  was  never  married.     It   was  contended,  that  the 

(1)  Fearne,  9-10.  ,      (3)  Fearne,  ."^OB;   2  Cruise,  111. 

(2)  Co^'an  v.  Cofran,  Cro.  Eliz,  360;  Hall        (4)  Doug.  753  and  n. 
V.  Tufts,  18  Pick.  455.  I 


CHAP.  XLIIL]  REMAINDER— VOID  CONDITIONS.  533 

limitation  to  B,  in  case  she  should  marry  and  have  issue,  was  not  to 
wait  till  the  natural  expiration  ot'thclirst  estate  for  life  to  her,  but  was 
to  take  effect  in  her  lifetime,  as  soon  as  the  contingency  on  which  it 
was  limited  should  hap[)en ;  and  that  it  was  tiierefore  wot  a  contingent 
remainder^  but  a  conditional  limitation;  i)Ocausc,  although  the  condition, 
on  which  a  remainder  is  limited,  may  happen  before  the^expi^ation  of 
the  particular  estate,  and  a  contingency  be  thei'cby  changed  into  a  vested 
remainder,  as  in  the  case  oi  L  adding  ton  v.  Kime,  and  other  like  cases, 
(p.  503,)  yet  a  remainder  cat.not  operate  to  abridge  the  duration  of  the 
prior  estate,  by  taking  effect  in  possession  before  the  natural  termination 
of  such  estate.  But  Buller,  J.,  remarked,  that  if  B  had  married  and 
had  is.'^ue,  her  life  estate  would  not  have  merged,  because  it  was  not 
limited  to  take  effect  till  the  death  of  the  wife;  and  Lord  Mansfield, 
that  here  the  first  limitation  was  to  two  persons  and  the  survivor,  so 
thai  a  preceding  freehold  will  be  in  tlie  survivor,  and  the  estate  over  is 
limited  on  a  contingency,  upon  which  a  remainder  may  depend.  It  is 
to  B  and  her  heirs  if  she  should  marry  and  have  issue,  and  it  must 
have  taken  effect  after  the  death  of  the  survivor.  Upon  these  grounds, 
the  limitation  was  held  valid  as  a  contingent  remainder.  There  is 
nothing  in  the  case  which  indicates  that  it  turned  at  all  upon  the  con- 
sideration, that  the  remainder  was  limited  to  B,  the  tenant  for  life,  lier- 
self;  and  the  note  of  the  reporter  shows  that  he  regarded  this  circum- 
stance as  wholly  immaterial. 

18.  To  render  valid  a  condition,  which  operates  by  way  of  enlarging 
the  prior  estate,  it  is  not  necessary  that  the  respective  estates  be  of  such 
nature  as  to  cause  a  merger.  Thus,  the  prior  estate  may  be  in  tail 
So,  also,  the  remainder  may  be  limited  after  other  intervening  remain- 
ders. But  the  law  requires,  in  order  to  effect  such  enlargement:  1.  A 
subsisting  particular  estate  for  its  foundation,  which  is  neither  at  will, 
revocable,  nor  contingent.  2.  That  the  particular  estate  remain  in  the 
original  grantee  or  his  representatives  unalienated,  for  the  sake  of 
privity.  3.  That  the  remainder  take  effect  immediately  on  perform- 
ance of  the  condition,  without  any  other  act  or  proceeding  whatever. 
4.  Tlie  two  estates  must  be  created  by  one  deed,  or  by  several  delivered 
at  one  time.(l) 

19.  By  devise,  a  condition  may  be  made  to  defeat  or  abridge  the 
preceding  particular  estate,  operating  as  a  limitation,  to  vest  the  pro- 
perty in  the  remainder-man,  without  the  necessity  of  any  entry  by  the 
heirs  of  the  devisor.  This  is  termed  a  conditional  limitation.  And  it 
will  be  effectual  even  against  the  heirs  of  the  devisor,  to  whom  the 
prior  estate  is  limited.(2)  It  is  said,  that  the  expression  and  idea  of  a 
conditional  limitation  are  adopted  to  avoid  the  necessity  of  an  entry  by 
the  heir;  and  that,  in  strictness,  all  conditional  limitations  are  either 
executory  devises  or  contingent  remainders.(3)((7) 

20.  Devise  to  A  for  life,  after  her  death  to  B  in  fee;  provided,  that 
if  the  testator's  wife  should  have  a  son,  the  lai\d  should  remain  to  him 
in  fee.     Held,  on  the  birth  of  the  son,  the  remainder  vested  in  him.(-4) 


(1)  Lord  StafTord's  case,  8  Rep.  75. 

(2)  FoHriic.  271),  407-9. 

(3)  Doug.  756,  n.  1. 


(4)  Dyer,  33  a,  127  a;  Pells  v.  Brown,  Cro. 
Jac.  592;  Frye  v.  Porter,  1  Cha.  Ca.  138  ;  1 
Mod.  300. 


(a)  A  conditional  limitation  is  where  an  estate  i.s  so  expressly  deQned  and  limited  by  the 
words  of  its  creation,  that  it  cannot  endure  for  any  loncrer  time  than  till  the  contingency 
happens,  upon  which  the  estate  ia  to  fail.     1  Steph.  278. 


534  REMAINDER— BY  WHAT  ESTATE  SUPPORTED.    [CHAP.  XLIV. 

21.  More  especially  will  this  construction  be  given,  where  the  estate 
whch  the  condition  operates  to  defeat  is  limited  to  the  heir,  who,  there- 
fore, if  an  entry  were  necessary,  Avould  have  to  enter  upon  himself; 
and  where,  consequently,  the  condition,  as  such,  would  be  nugatory  and 
void. 

22.  Devise  to  A,  the  heir,  and  another  devise  to  B ;  and  if  A  molest 
B,  A  shall  lose  his  devise,  and  it  shall  go  to  B.  A  enters  upon  the 
land  devised  to  B.     Held,  A's  land  thereby  vested  immediately  in  B.(l) 

28.  A  limitation  in  remainder,  by  way  of  use,  may  also  be  valid,  as 
&  future  or  shifting  use,  though  it  operate  to  abridge  or  defeat  the  prior 
estate.(2) 


CHAPTER    XLIV. 

REMAINDER— BY  WHAT  ESTATE  SUPPORTED. 

1.  Contingent  freehold  remainder  must  be  |      9.  Botii  estates  must  be  created  by  one  in- 

sirumeiit. 
13.  Estate  of  trustees  sufficient  to  support 
remainder. 


limited  on  a  freehold, 

4.  Contingent  remainder  for  years. 

5.  Possession  not  necessary — a  right  of  en- 

try sufficient — to  sustain  a  remainder.  ' 


1.  It  has  already  been  stated,  (ch.  2,)  that  a  freehold  cannot  be  limi- 
ted to  commence  m/aiuro.  Hence  it  follows,  that  a  freehold  contingent 
remainder,  in  order  to  be  valid,  must  be  preceded  by  a  vested  freehold 
estate  ;  in  which  case  the  whole  interest  conveyed  passes  out  of  the 
grantor  immediately,  in  connection  with  the  prior  estate.  But  if  this 
be  less  than  freehold,  a  freehold  interest  cannot  vest  immediately  any 
where,  and  the  remainder  is  therefore  void.(3)(a) 

2.  Devise  to  A  for  fifty  years,  if  he  live  so  long,  remainder  to  the 
heirs  male  of  his  body.  Held,  the  latter  limitation  was  a  void  remain- 
der.(4) 

8.  It  has  been  seen,  that  where  the  particular  estate  is  limited  to  A 
for  years,  remainder  to  B  after  the  death  of  A  ;  if  the  term  is  so  long 
as  to  render  it  impossible  or  highly  improbable  that  A  should  survive 
its  expiration,  the  remainder  will  be  deemed  to  be  vested  and  not  con- 
tingent. On  the  other  hand,  where  the  term  is  so  short  that  the  life 
may  probably  outlast  it,  the  remainder  is  contingent,  and,  being  limited 
upon  an  estate  less  than  freehold,  is  void.(5) 

4.  The  reason  of  the  rule  above  stated  is  inapplicable,  where  a  re- 
mainder is  not  freeliuld,  but  only  for  years.     Hence,  the  rule  itseit  is 


(1)  2  Mod.  7. 

(2)  4  Kent,  249. 

(3)  Fearne,  281. 


(4)  Goodright  v.  Cornish,  1  Salli.  226. 

(5)  Fearne,  24-5. 


(a)  In  New  York,  a  contingent  remainder  may  be  limited  on  a  term  of  years,  provided 
the  nature  of  the  comingeney  is  such,  tliat  the  remainder  must  vest  in  interest,  if  ever,  dur- 
ing the  continuance,  or  upon  the  termination,  of  not  more  than  two  lives  in  being  at  the 
time  of  the  creation  of  such  remainder.    Butler  v.  Butler,  3  Barb.  Ch.  304. 


OHAP.  XLIV.]    REMAINDER— BY  WHAT  ESTATE  SUPPORTED.  oSo 

Stated  not  to  apply  to  such  a  case.(l)  In  an  early  decision, (2)  however, 
it  was  held,  that  a  contingent  remainder  for  years  could  not  be  limited 
upon  a  j)rior  estate  for  years,  not  upon  the  ground  above  referred  to, 
but  because  a  lease  for  years  operates  hy  icaij  of  contract,  and  therefore 
the  particular  estate  and  the  remainder  estate  operate  as  two  distinct 
estates,  grounded  upon  several  contracts;  whereas,  in  cxsii  ^'t^a  coniin- 
gent  freehold  remainder  limited  upon  a  {^receding  estate  for  life,  the  par- 
ticular estate  and  the  remainder  is  but  as  one  estate  in  law,  and  is  crea- 
ted by  the  livery. 

5.  Although  a  contingent  freehold  remainder  requires  a  preceding 
freehold  to  support  it,  it  is  not  necessary  that  the  latter  should  remain 
actually  vested  in  possession  in  the  tenant.  It  is  sullicient,  if,  being 
out  of  possession  at  the  time  when  the  remainder  would  vest,  he  still 
retains  a  right  of  entry.  Otherwise,  if  he  has  a  mere  right  of  action  ; 
for  this  supposes  that  the  title  is  uncertain,  and  depends  upon  the  doubt- 
ful event  of  a  suit,  till  the  termination  of  which,  another  party  has  a 
title  apparently  good.  Thu.s,  where  the  tenant  is  disseized,  as  he  may 
regain  his  estate  by  entry,  the  remainder  is  still  good.  But  if  the  dis- 
seizor die,  as  the  possession  of  his  heirs  can  be  defeated  only  by  an  ac- 
tion of  the  rightful  owner,  the  remainder  is  destroyed.  So,  in  England, 
where  tenant  in  tail,  with  contingent  remainders,  makes  a  feolfinent  in 
fee,  and  dies;  inasmuch  as  his  issue  are  driven  to  an  action  to  regain 
their  estate,  the  remainders  are  defeated. (3) 

6.  The  right  of  entry,  to  support  a  contingent  remainder,  must  be 
B.  present  right.  It  must  also  precede  the  happening  of  the  contingency. 
It  it  commence  at  the  same  time  as  the  latter,  this  is  not  su(ficient.('i:) 

7.  When  once  the  right  of  entry  is  gone,  the  remainder  is  gone 
forever  ;  and  a  new  title  of  entry  will  not  restore  it.  Thus,  if  there  be 
tenant  for  life,  with  contingent  remainder  over,  and  the  tenant  for  lite 
make  a  feoftment  upon  condition,  and  the  contingency  happen  before 
the  condition  is  broken,  or  before  entry  for  breach ;  the  remainder  is 
wholly  destroyed,  though  the  tenant  for  life  should  afterwards  enter  for 
condition  broken,  and  regain  his  former  estate.(5) 

8.  It  would  seem  also,  that,  where  the  right  of  entry  of  the  particular 
tenant  is  defeated  by  an  absolute  conveyance,  the  contingent  remainder 
is  destroyed,  even  though,  before  the  contingency  happens,  the  prece- 
dent estate  is  restored  Thus,  in  England,  if  xV,  a  tenant  in  tail,  with 
remainder  to  the  right  heirs  of  B,  make  a  feoffment  and  die,  and  the 
issue  of  A  recover  the  land  by  action  before  the  death  of  B,  so  that, 
when  the  remainder  would  take  effect  by  B's  death,  the  prior  estate  is 
restored  ;  still,  it  seems,  the  heirs  of  B  cannot  take.(6) 

9.  A  remainder  must  be  created  by  the  same  instrument  which 
creates  the  particular  estate.(7) 

10.  A  woman  being  tenant  for  life,  her  husband  devised  the  estate 
to  the  heirs  of  her  body,  if  they  reached  fourteen  years.  Held,  an 
executory  devise,  and  not  a  contingent  remainder.(S) 

11.  A  was  tenant  for  life  by  marriage  settlement,  remainder  to  his 

(1)  2  Cruise,  288;  Fearne,  285,  430.  l      (5)  4  Kent,  254,  255. 

(2)  Corbet  f.  Stone,  T.  Raym.  150-1.  (G)  See  Fearne,  464;  2  Cruise,  296. 

(3)  Fearne,    286;   Archer's   case,    1    Rep.        (7)  Fearne,  302. 

66  b.  (8)  Snow  v.  Cutler,  T.  Raym.  162. 

(4)  Fearne,  289.  I 


536  REMAINDER— AT  WHAT  [CHAP.  XLT. 

wife  for  life,  remainder  to  his  sons  by  that  marriage  in  tail.  A's  father, 
the  reversioner,  by  will  reciting  the  settlement,  devised  the  lands  to 
A's  sons  conformably  to  it;  and  if  A  should  die  vvithout  such  issue,  to 
A's  sons  by  any  other  wife  in  tail  male;  and  if  A  should  die  without 
issue,  to  his  grandchildren  in  fee.  Held,  even  if  the  words  without 
issue  gave  the  heirs  of  the  body  of  A  an  estate  by  implication,  A  would 
not  take  an  estate  tail ;  for  nothing  was  devised  to  him,  and  the  devise 
could  not  be  tacked  to  his  estate  for  life,  so  as  to  produce  the  effect  of 
one  entire  limitation. (1) 

12.  A,  being  an  owner  in  fee,  and  having  previously  limited  a  life 
estate  to  B,  conveys  to  the  use  of  himself  for  life,  and  after  the  death 
of  B,  and  A  her  husband,  to  the  use  of  C,  son  of  A,  for  life.  Held, 
inasmuch  as  these  limitations  were  made  by  distinct  deeds,  C  did  not 
take  a  contingent  remainder,  as  he  otherwise  would  ;  but  it  was  a  con- 
veyance to  C  of  a  subsisting  remainder,  or  reversion  expectant  upon 
B's  death,  and  the  mention  of  this  event  merely  indicated  the  time 
when  C  should  have  possession,  and  did  not  make  a  contingency  (2) 

13.  The  legal  estate  of  trustees  is  sufficient  to  support  contingent  re- 
mainders, without  any  preceding  trust  of  freehold.(8) 


CHAPTER  XLV. 

REMAINDER— AT  WHAT  TIME  IT  SHALL  VEST. 


1.  Remainder  must  vest  during,  or  imme- 
diately upon  termination  oi\  the  prior 
estate. 

5.  Subsequent  revival  of  prior  estate  does 
not  render  valid  the  remainder. 


6.  Remainder  void,  though  a  prior   estate 

for  years  continues. 
9.  Posthumous  child. 

12.  Vested  remainder  not  affected  by  defeat 

of  prior  estate. 

13.  Remainder  may  become  void  in^art. 


1.  The  principle  has  been  already  alluded  to,  that  a  remainder, 
in  order  to  take  effect  at  all,  must  vest  either  during  the  continuance, 
or  immediately  upon  the  expiration,  of  the  preceding  estate.  Thus,  if 
a  conveyance  be  made  to  A  for  life,  and,  upon  A's  death  and  one  day- 
after  remainder  to  B  ;  the  remainder  is  void.  We  have  seen  that  this 
rule  is  founded  in  feudal  principles,  and  in  the  inconveniences  of  an 
abeyance  of  the  freehold.     (Ch,  2.) 

2.  A  remainder  will  be  good,  if  it  is  to  vest  immediately  upon  the 
termination  of  the  preceding  estate.(4) 

3.  Limitation  to  A  for  the  life  of  B,  remainder  to  the  heirs  of  the 
bod}^  of  B.     The  remainder  is  good. (5) 

4.  Limitation  to  A  and  B  for  their  joint  lives,  remainder  to  the  heirs 
of  him  who  shall  first  die.     The  remainder  is  valid. (6) 

5.  If  the  preceding  estate  is  terminated  at  the  time  when  the  con- 

(1)  Fearne,    301-2;    Moore   v.    Parker,  4(      (4)  Fearne,  310;  4  Kent,  248. 
Mod.  316;  Doe  v.  Fonnereau,  Doug.  486.  (5)  Co.  Lit.  298  a. 

(2)  Weale  v.  Lower,  Pollexfen,  66.  (6)  lb.  378  b. 

(3)  Fearne,  303.     See  ch.  46.  J 


CHAP.  XLV.] 


TIME  IT  SHALL  VEST. 


537 


tingency  happens,  though  it  be  afterwards  restored,  the  i-cnuiindcr  eau- 
not  take  ertect.(l) 

0.  The  tennination  of  a  ])receding//-<'e/io/c/,  before  the  remainder  can 
vest,  defeats  the  remainder,  though  a  preceding  estate  I'ur  years  still  con- 
tinue. 

7.  Conveyance  to  A  for  years,  remainder  to  B  in  tail, -remainder  to 
the  heirs  of  A.  This  gives  a  contingent  remainder  to  A's  heirs.  Jience, 
if  B  die  without  issue  before  A,  inasmuch  as  the  preceding  freelioki 
estate  terminates  before  the  remainder  can  vest,  the  latter  becomes 
void.(2) 

S.  A  testator  devises  to  his  wife  for  hfe,  remainder  to  A,  his  son,  for 
ninety-nine  years,  if  he  should  so  long  live  ;  after  the  deaths  of  the  wife 
and  A,  to  the  heirs  of  the  body  of  A,  with  a  power  to  A  of  appointing 
to  all  his  children.  The  wife  dies,  living  A.  Held,  the  limitation  to 
the  children  of  A  was  thereby  defeated.(3) 

9.  In  conformity  with  the  principle  above  stated,  it  was  formerly 
held,  that,  under  the  limitation  of  a  remainder  to  the  children  of  the 
particular  tenant,  a  j^osl/iumous  child  could  not  take,  not  being  in  exis- 
tence at  the  termination  of  the  preceding  estate.  But  a  decision  to  this 
effect,  made  by  the  Court  of  Common  Pleas  and  the  Court  of  King's 
Bench,  (Lord  Somers  dissenting,)  in  the  case  of  a  will,  was  reversed  by 
the  House  of  Lords,  all  the  judges  dissenting.  Afterwards,  the  Statute 
14  Wm.  Ill,  c.  14,  provided,  that,  where  an  estate  is  limited  by  any 
seltlement  to  a  child  or  children  of  any  person,  remainder  over,(a)  a  pos- 
thumous child  shall  take.(4) 

10.  It  is  the  established  principle  of  American  law,  that  a  posthu- 
mous child  shall  take  both  by  descent  and  express  limitation,  equally 
with  others.(5)  It  was  early  held  in  New  York, (6)  that,  althougli  the 
Statute  of  \Villiam  is  not  in  force  in  that  State,-  having  been  expressly 
repealed,  yet,  independently  of  this  act,  the  English  law  is  settled  in 
favor  of  the  claim  of  a  posthumous  child.  On  principles  of  natural  jus- 
tice, such  child  has  the  same  rights  with  others.  The  civil  law  never 
makes  a  distinction,  and  the  common  law  very  rarely.  Thus,  a  posthu- 
mous child  takes  a  share  under  the  statute  of  distributions,  and  by  de- 
scent. So,  the  birth  of  such  child,  (with  marriage,)  revokes  a  will. 
Independent  of  the  Statute  of  William,  the  decision  of  the  House  of 
Lords,  which  was  the  determination  of  the  highest  tribunal  of  the  Eng- 
lish law,  must  be  considered  as  prescribing  the  rule  at  common  law  ;  and, 
inasmuch  as  the  old  technical  rule,  which  requires  a  remainder  to  vest 
at  the  very  instant  when  the  preceding  estate  terminates,  was  Ibunded 
on  feudal  reasons  not  now  in  force,  this  furnishes  an  additional  ground 
for  ailhcring  to  the  later  doctrine. 

11.  A  jiosthumous  child  is  entitled,  under  the  statute,  to  the  profits 


(1)  Fciirnc,  4G4. 

(2)  Jenk.  24S ;  2  RoUe's  khr.  418.  See 
Pestmtr  V.  Allen,  12  ^fee8.  k  W.  279. 

(3)  D.)e  V.  Morg.u),  ?.  T.  U,  763. 

(4)  Thelhissuii  v.  WoodforJ,  4  Ves.  342; 
Reeve  f.  Long,  Sulk.  227  ;  liurdet  v.  Hope- 
good,  1  P.  Wms.  486. 


(6)  4  Kent,  248. 

(6)  Stedfast  v.  Nicoll,  3  John.  Cas.  18; 
Swift  V.  Diifficld,  5  S.  &  R.  38 ;  ^filrsellis  v. 
Tlialhiiner,  2  Paige,  35;  ]>ingley  v.  Diiigley, 
5  Mns-s.  535;  Burke  v.  Wilder,  1  M 'Cord's 
Clia.  551;  Armistead  v.  Dangertield,  3  Mun. 
20;  Aik.  Dig.  94. 


(a)  But  for  a  remainder,  the  children  would  take  by  descent.     This,  it  seems,  is  the  reason 
for  limiting  the  provision  to  cases  of  remainder. 


538 


REMAINDER. 


[CHAP.  XLYI. 


of  the  estate  accruing  since  the  father's  death.  The  act  provides,  that 
he  shall  take  as  if  born  before  the  parent's  death  ;  and  this  distinguishes 
the  case  from  that  of  an  heir,  who  does  not  thus  take.  The  same  con- 
struction neces.sarily  arises  from  the  provision  in  the  statute,  that  trus- 
tees, to  preserve  contingent  remainders,  shall  not  be  necessary.  The 
estate  is  held  to  vest  in  the  person  next  entitled  after  the  father's  death, 
and  upon  the  birth  of  a  child  to  divest,  hy  relation  ;  as  in  the  case  of  the 
enrolment  of  a  deed,  which  relates  to  the  making.  Hence  the  child  may 
either  maintain  ejectment,  laying  the  demise  from  the  father's  death, 
which  the  defendant  will  be  estopped  to  deny  ;  or  bring  a  bill  in  equity 
for  an  account,  as  against  a  trustee.(l) 

12.  A  vested  remainder  is  not  necessarily  avoided  by  the  defeating 
of  the  preceding  estate.  Thus,  A  conveys  to  B  for  life ;  and  after- 
wards, having  disseized  B,  makes  another  conveyance  to  C  for  the  life 
of  B,  remainder  to  D.  B  enters  and  avoids  the  estate  of  C.  D's  re- 
mainder is  not  thereby  defeated.  So,  where  the  preceding  estate  is 
limited  to  an  infant,  and,  on  coming  of  age,  he  disaffirms  it;  a  remain- 
der limited  after  such  estate  is  still  good.(2) 

13.  Where  the  preceding  estate  is  limited  to  several  persons,  if  a  part 
of  them  die  before  the  contingency  happens,  the  remainder  will  be  in 
part  defeated.  On  the  other  hand,  where  the  remainder  is  limited  to 
persons  not  in  esse,  if  some  only  are  born  during  the  particular  estate, 
the  remainder  as  to  the  rest  will  be  void.  Thus,  in  case  of  limitation 
for  life  to  A,  remainder  to  the  heirs  of  B  and  C  ;  if  B  dies  before  A,  and 
C  survives  A,  the  heirs  of  B  shall  take;  but  not  those  of  C.  This 
principle,  however,  it  seems,  is  not  applicable  to  devises  and  uses.(3) 


CHAPTER    XLVI. 


REMAINDER.     REMAINDER  BY  WAY  OF  USE. 


2.  Since  the  statute  of  uses,  a  freehold 
trust  necessary  to  support  contingent 
remainders. 

4.  Preceding  trust  must  continue  till  the 
contingency  happens. 


6.  Resulting   trusts   sufficient   to  support 

remainders. 

7.  Contingent  uses  arise  out  of  seizin  of 

trustees — discussions  upon  this  sub- 
ject— Chudleigh's  case,  &c. 
14.  Springing  and  shifting  uses. 


1.  Eemainders  may  be  limited  by  way  of  use,  and  are  indeed  more 
often  limited  in  this  mode  than  in  any  other. 

2.  With  respect  to  remainders  by  way  of  use,  a  very  materia !  altera- 
tion in  the  law  was  effected  by  the  statute  of  uses.  Before  this  statute, 
if  a  freehold  legal  estate  was  vested  in  trustees,  although  the  preceding 
or  particular  trust  estate  were  less  than  freehold,  the  legal  freehold  of 
the  trustees  was  sufficient  to  support  contingent  remainders.  Thus,^  a 
limitation  would  be  good  to  trustees  and  their  heirs  to  the  use  of  A  for 
years,  remainder  to  the  right  heirs  of  B.     But  after  the  statute  of  uses, 

(1)  Basset  v.  Basset,  8  Vin.  Abr.  87;  31  (3)  Gilb  Ten.  252;  Fearne,  310;  lb.  312; 
Atk.  203.  Co.  Lit.    9  a;  Matthews   v.    Temple,  Comb, 

(2)  Co.  Lit.  298  a  ;  4  Kent,  234-5.  '467  ;   2  Cruise,  302. 


CHAP.  XLVI.]  REMAINDER  BT  "^'AY  OF  USE.  539 

the  effect  of  which  is  immediately  to  divest  the  estate  of  tlie  trustee, 
such  a  Hmitation  as  to  the  heirs  of  B  would  be  void. 

3.  A  conveys  by  lease  and  rch^asc  to  trustees  and  their  heirs,  to  the 
use  of  himself  for  years,  remainder  to  the  use  of  trustees  for  years,  re- 
mainder to  his  heirs  male.     Held,  the  last  remainder  wiis  void.O) 

4.  Upon  the  same  principle,  a  freehold  estate  in  trustecsJs- insufficient 
to  snjiport  a  contingent  remainder,  where  the  particular  estate  in  trust 
terminates  before  the  contingency  hap})ens. 

5.  A,  and  B,  his  wife,  levy  a  fine  of  B's  land  to  the  use  of  the  heirs 
of  the  body  of  A  on  B  begotten,  remainder  to  the  use  of  A's  right 
heirs.  They  had  issue,  which  died  ;  then  B  died,  then  A.  Held,  the 
limitation  to  A's  heirs  was  void  ;  that,  inasmuch  as  the  land  belonged 
to  B,  no  use  resulted  to  A ;  and  though  B  might  have  a  resulting  free- 
hold use,  which  would  support  the  remainder  to  the  issue,  yet,  as  she 
died  living  A,  such  freehold  would  not  support  the  remainder  to  A's 
heirs,  since  he  could  have  no  heirs  during  his  life.(2) 

f).  But  where  a  freehold  estate  results  to  the  party  who  makes  a 
limitation  to  uses,  it  seems  to  be  as  effectual  to  support  remainders,  as 
if  expressly  limited  to  a  third  person.(3) 

7.  On  the  other  hand,  it  seems  that  a  prior  freehold  limitation  of  a 
use  is  not  sufficient  to  sustain  a  subsequent  contingent  use  ;  upon  the 
principle,  that  a  use  cannot  arise  out  of  a  use.  Thus,  although,  as  has 
been  seen,  a  limitation  to  A  for  life,  remainder  to  the  heirs  of  B,  creates 
a  valid  contingent  remainder,  supported  by  A's  life  estate  ;  yet,  if  the 
limitation  were  made  to  A  in  fee,  to  the  use  of  B  for  life,  remainder  to 
the  use  of  the  heirs  of  C ;  such  remainder  would  not  be  supported  by 
B's  life  estate,  but  must  rest  upon  the  estate  of  the  trustee. 

S.  Upon  the  question,  in  what  manner  future  contingent  uses  are 
supported  and  carried  into  effect  by  the  estate  of  the  trustees.  Lord 
Hardwicke  remarks,  in  Garth  v.  Cotton^  (Dickens,  183,)  that  "tl?e  judges 
entered  into  very  refined  and  speculative  reasonings,  some  of  which  (I 
speak  it  with  reverence)  are  not  very  easy  to  comprehend."  These 
reasoTiings,  in  the  C(jnnection  in  which  they  were  used,  had  a  practical 
bearing;  because  they  involved  the  question,  as  to  the  power  of  trus- 
tees to  destroy  contingent  remainders — a  subject  which  will  be  con- 
sidered in  the  next  chapter.  But,  supposing  no  act  to  have  been  done 
by  the  trustees  to  destroy  the  remainders,  their  validity,  as  having  a 
sufficient  preceding  estate  to  support  them,  does  not  appear  to  have 
been  questioned. 

!•,  Chancellor  Kent  gives  substantially  the  following  account  of  the 
controversy  referred  to.(4) 

10.  Before  the  statute  of  uses,  the  feoffees  to  uses  were  seized  of  the 
legal  estate ;  and,  if  di.sscized,  no  use  could  be  executed,  until  by  entry 
they  had  regained  their  seizin,  for  the  statute  only  executed  those 
uses  which  had  a  seizin  to  support  them.  2\fter  the  statute  of  uses, 
it  was  difficult  to  ascertain  by  what  estate  contingent  uses  were  to 
be  supported.  Some  held,  that  the  estate  was  vested  in  the  first  cestui 
que  use,  subject  to  the  uses  which  should  be  executed  out  of  his  seizin; 

(1)  Adams  v.  Savage,  Ralk.  679.  j      (4)  4  Kent,  237-45.     (See  Garth  v.  Cotton, 

(2)  Davies  v.  Speed;  Show.  Pari.  C.  104;  Dickens,  183;  Hales  v.  Risley,  Pollexfen, 
Salk.  675  n.  386.) 

(3)  I'enkay  v.  HurrcU,    2  Freom.   258 ;  2 
Cruide,  308.  I 


540  REMAINDER.  [CHAP.  XLVI. 

but  this  opinion  was  untenable,  for  a  use  could  not  arise  out  of  a  use. 
It  was  again  held,  the  seizin  to  serve  contingent  uses  was  ianuhihus  or 
in  custodia  legis,  or  had  no  substantial  residence  anywhere.  Others  were 
of  opinion,  that  so  much  of  the  inheritance  as  was  limited  to  the  con- 
tingent uses,  remained  actually  vested  in  the  feoffees  until  the  uses  arose. 
But  the  prevailing  doctrine  was,  that  there  remained  no  actual  estate, 
and  only  a  possibility  of  seizin,  or  scintilla  juris,  in  the  feoffees,  or  re- 
leasees to  uses,  to  serve  the  contingent  uses  as  they  arose.  This  doc- 
trine was  first  started  in  Brent's  case,(l)  in  16  Eliz.  In  Manning  and 
Andrews'  case,(2)  the  judges  were  equally  unsettled  in  their  notions 
respecting  the  o[)eration  of  the  statute  on  contingent  uses.  Some  of 
them  tliought  a  sufficient  seizin  remained  in  the  trustees  to  support  the 
future  uses ;  while  others  held,  that  no  seizin  remained  in  them,  but 
that  the  statute  drew  the  confidence  out  of  them,  and  reposed  it  upon 
the  land,  which  rendered  the  use  to  every  person  entitled  in  his  due 
season.  In  a  few  years,  Chudleiglis  case(3)  arose,  which  is  the  lead- 
ing case  upon  this  subject.  A  minority  of  the  judges  here  held,  that 
the  notion  of  a  scintilla  remaining  in  the  trustees  was  as  imaginary  as 
the  Utopia  of  Sir  Thomas  More ;  that  their  original  seizin  was  suffi- 
cient to  serve  the  future  as  well  as  present  uses;  and  that  the  future 
uses  were  in  the  preservation  of  the  law,  till  they  became  vested.  But  a 
majorityof  the  judges  held,  that  the  statute  could  not  execute  any  uses 
that  were  not  in  esse ;  that  not  a  mere  scintilla  remained  in  the  feoffees, 
but  a  sufficient  estate  to  serve  the  future  uses,  unless  their  possession 
was  disturbed,  and  their  right  of  entry  lost.  From  these  several  cases 
the  doctrine  has  been  deduced,  that  future  uses  cannot  be  executed 
without  a  remaining  right  or  estate  in  the  feoffee.  The  estate  in  the 
land  is  supposed  to  be  transferred  to  the  person  who  has  the  estate  in  the 
use,  and  not  to  the  use  ;  and  it  is  inferred,  that  no  use  can  become  a  legal 
interest, "until  there  shall  be  a  person  in  whom  the  estate  may  vest. 

11.  But  this  view  of  the  subject  has  been  opposed  by  very  distin- 
guished writers  upon  Real  Property, — Mr.  Fearne  and  Mr.  Sugden. 
The  latter  takes  the  ground,  that  the  doctrine  of  a  scintilla  juris  was 
never  judicially  decided,  but  has  been  deduced  from  extra-judicial 
dicta ;  that  the  statute  draws  the  whole  estate  in  the  land  out  of  the 
feoffees,  and  the  prior  estates  take  effect  as  legal  estates,  and  the  con- 
tingent uses  take  effect,  as  they  arise,  by  force  of  the  original  seizin  of 
the  feoffees.  If  there  are  any  vested  remainders,  they  take  effect, 
subject  to  open  and  let  in  contingent  estates,  when  the  contingency 
occurs.  Thus,  in  a  conveyance  in  fee  to  A,  to  the  use  of  B  for  life, 
remainder  to  his  unborn  sons  in  tail,  remainder  to  A  in  fee ;  the  statute 
immediately  draws  the  whole  estate  out  of  A,  vesting  it  in  B  and  C 
respectively,  which  exhausts  A's  entire  seizin.  The  estate  to  the  sons 
of  B  is  no  estate,  till  they  are  born  ;  and  the  statute  did  not  intend  to 
execute  contingent  uses,  but  the  contingent  estates  are  supported,  by 
holding  that  the  interests  of  B  and  C  are  vested  only  sub  modo,  with  a 
liability  to  open.  A  retains  no  scintilla,  but  the  contingent  uses,  when 
they  arise,  take  effect,  by  relation,  out  of  the  original  seizin. 

12.  Mr.  Preston  is  of  opinion,  that  limitations  of  contingent  uses  give 

(1)  Dyer,  340  a;  Brent's  case,  2  Leon.  14.  I  (The  latter  report  said  to  be  indisputably  the 

(2)  Manning.  &c.,  1  Leon.  256.  beat.)     4  Kent,  239  n. 

(3)  1  Co.  120;  Dillam  v.  Frain,  1  And.  309.  1 


CHAP.  XLVI.] 


RKMAINDER  BY  WAT  OF  USE. 


641 


contingent  interests,  and  tliat  the  estate  may  be  executed  to  the  use, 
though  there  is  no  person  in  whom  it  can  vest.  The  statute  passes  the 
estate  of  the  feoffees  in  tl)e  land  to  the  estates  and  interests  in  the  use, 
and  apportions  the  former  estate  accordingly^.  No  scintilld,  or  the  most 
remote  jiossibility  of  seizin,  remains  with  the  trustees. 

18.  Air.  Cornish  asserts,  that  the  doctrine  of  scindlln  j^iiri^  Testa  on 
paramount  authority. 

14.  Kemainders  limited  by  way  of  use  may  be  vested  in  favor  of 
one  person,  and  afterwards,  on  the  birth  of  another  j)erson,  or  the  hap- 
pening of  some  other  event,  divested  wholly  or  in  part,  and  vested  in 
new  parties.  This  point  has  been  already  adverted  to  under  the  title 
of  Uses  and  Trusts.  Some  of  the  cases,  which  will  be  mentioned  in 
illustration  of  the  princii)le,  are  not  strictly  instances  of  remainder,  but 
they  are  not  distinguishable  in  reason  from  those  whieh  are. 

15.  In  the  lirst  ])lace,  where  a  remainder  is  limited  by  way  of  use 
to  several  persons,  or  to  a  class  of  persons,  who  become  capable  of 
taking  at  dilTerent  times,  though  it  vests  wholly  in  one,  it  will  become 
divested  in  part,  and  let  in  the  others  to  a  proportional  share.  In  this 
respect,  however,  uses  seem  not  to  differ  from  legal  estates  created  by 
devise. 

16.  Limitation  to  the  use  of  A  for  life,  remainder  to  the  use  of  B, 
his  wife,  for  life,  remainder  to  all  their  issue  female.  Upon  the  birth 
of  a  daughter,  the  remainder  vests  in  her;  but,  upon  the  birth  of  a 
second  daughter,  the  latter  also  shall  take  a  share  of  the  estate.(l)  (See 
p.  528.) 

17.  Another  class  of  future  uses  are  those  limited  to  arise  m 
futuro,  without  any  preceding  estate  to  support  thijni  ;  or  uses  which 
change  from  one  person  to  another  by  matter  ex  post  facto,  though 
the  first  use  were  limited  in  fee.  These,  of  course,  are  not  strictly 
remainders. 

lb.  Limitation  to  the  use  of  one,  and  of  such  wite  as  he  shall 
afterwards  marry.  Upon  his  marriage,  the  wife  takes  with  the  hus- 
band.(2) 

19.  A,  in  consideration  of  love  and  affection  to  B,  his  brother,  and 
of  £100  paid  by  him,  granted,  released  and  confirmed  to  B,  then  in 
possession  as  lessee  lor  a  year,  in  tail,  after  the  death  of  A.  Held, 
good  as  a  covenant  to  stand  seized,  though  void  as  a  lease  and  release, 
and  that  the  estate  vested  in  B  after  A's  death,  as  a  springing  use.(8) 

20.  Where  the  conveyance  to  uses  operates  without  any  ehange  of 
j)ossession,  the  springing  use  ari.ses  out  of  the  seizin  of  the  covenantor; 
where  there  is  a  change  of  possession,  out  of  that  of  the  first  grantee 
to  uses.(4:) 

21.  Tlie  class  of  uses  already  referred  to  are  called  sprimjwg  uses. 
A  few  cases  will  be  mentioned  o{ shifting  or  secondary  uses  ;  which  are 
defined,  lus  uses  limited  so  as  to  change  by  matter  ex  post  facto. (p)  The 
distinction,  however,  between  the  dilferent  classes  of  future  contingent 
uses,  seems  to   be  very  nice,  and  not  always  accurately  observed  by 


(1)  Mailiowsw.  Temple,  Comb.  467;  Sussex 
c.  'J'emple,  1  Ld.  Riijm.  311;  Doo  t'.  Martin, 
4  T.  K.  39,  ace. 

(2)  Mutton's  case.  Dyer,  274  b;  Woodlifl" 
V.  Drury,  Cra  Eliz.  439. 


(3)  Roe  V.  Tranmcr,  2  Wils.  75. 

(4)  2  Cruise,  311. 

(5)  2  Cruise,  311. 


542 


REMAINDER  BY  WAT  OF  USE. 


[CHAP.  XLVI. 


writers  of  authority.  Chancellor  Kent  says,  springing  uses  arise  on  a 
future  event,  where  no  preceding  estate  is  limited ;  while  shifting  or 
secondary  uses  take  effect  in  derogation  of  some  other  estate. (1) 

22.  A^conveys  to  the  use  of  B  and  his  heirs,  till  G  shall  pay  B  £40, 
then  to  the  use  of  C  and  his  heirs.  Upon  payment  of  this  sum,  held, 
C  should  have  the  estate.  The  only  doubt  was,  whether  the  ,right  of 
entry  belonged  to  C  himself,  or  to  the  feoffee  to  uses.(2) 

23.  So  A  may  convey  to  trustees  and  their  heirs  to  their  own  use ; 
but,  unless  they  pay  a  certain  sum  in  a  certain  time,  to  the  use  of  A, 
with  remainders  over.  Upon  non-payment,  the  estate  vests  in  A,  and 
the  remainders  take  effect.(o) 

24.  Conveyance  of  two  estates,  S  and  T  ;  of  the  former  to  the  use  of 
A  in  fee,  and  of  the  latter  to  the  use  of  B  in  fee,  until  A  should  be 
evicted  from  S  by  B's  wifa ;  then  T  to  the  use  of  A,  till  his  loss  should 
be  satisfied  from  the  profits  of  T.     Held  good. (4) 

25.  A,  tenant  for  life,  and  B,  the  reversioner,  covenant  to  levy  a  fine 
to  the  use  of  A  in  fee,  unless  B  pay  A  10s.  at  a  certain  time ;  if  he 
should  pay  it,  to  the  use  of  A  for  life,  remainder  to  B  in  fee.  A  has  a 
fee  till  payment  of  the  money.(5) 

.  26.  A  and  B,  sisters,  in  consideration  of  £4,000  paid  to  A,  and  of  a 
marriage  proposed  between  B  and  C,  convey  to  trustees  in  fee,  to  the 
use  of  C  for  life,  remainder  to  B  for  life,  remainder  to  the  children  in 
tail,  remainder  to  C  in  fee  ;  but  if  both  B  and  C  should  die  leaving  no 
issue,  and  the  heirs  of  B  should,  within  twelve  months  from  the  death 
of  the  survivor  of  them,  pay  the  heirs  or  assigns  of  C  £i,000,  the  re- 
mainder in  fee  to  C  and  his  heirs  to  cease,  and  the  premises  to  remain 
to  the  use  of  the  heirs  of  B.     Held,  a  good  shifting  use.(6) 

27.  Where  there  is  any  preceding  estate  to  support  a  future  use,  it 
will  be  construed  as  a  contingent  remainder,  and  not  a  springing  or 
shifting  use.(7) 

28.  The  remark  already  made  (s.  18)  as  to  the  seizin,  out  of  which 
a  springing  use  arises,  is  equally  applicable  to  shifting  uses.(8) 

29.  But  such  use  cannot  arise  out  of  the  seizin  of  the  prior  cestui  que 
use.  Conveyance  to  A  to  the  use  of  B  in  fee  ;  and  if  C  pay  B  a  certain 
sum,  B  to  stand  seized  to  the  use  of  C  in  fee.  This  is  a  void  limitation 
as  to  C  (9) 


(1)  4  Kent,  296-7. 

(2)  Bro.  Abr.  Feoffment  al  Use,  pi.  30. 

(3)  Harwel   v.   Lucas,    Moo.    99  ;    Brace- 
bridge's  case,  1  Leo.  264. 

(4)  Kent  v.  Steward,  2  Rolle'a  Abr.  722  ; 
Cro.  Car.  158. 


(5)  Spring  v.  Ctesar,  1  RoUe's  Abr.  413. 

(6)  Lloyd  V.  Garew,  Show.  Pari.  Cas.  137. 

(7)  2  Ouise,  315. 

(8)  Il)id. 

(9)  Chudleigh's  case,  1  Rep.  137,  a. 


rCHAP.  XLVII. 

• 


RKMAINDKR— HOW  DKFEATKD. 


54S 


CHAPTER  XL\   1  I. 

ii::MAiNnKR— HOW  defeated. 


1.  By  destroy iiiK'  tlie  purlicular  csiato. 

2.  WlietlaT  liy  ii  mere  chamje  of  ealnto. 

3.  Wliero  llio  p.irr.icular  eslato  and  a  sub- 

seqtieiit    roiiiaiiider   unite,    wliother 
contingent     remainders     destroyed. 


]>iHtinetion  of  cases. 

10.  KonLiindcT  by  way  of  use,  liow  des- 
troyed ;  whether  actual  seizin  neces- 
sary, Ac. 

19.  Aniericun  opinions  and  eases. 


1.  Inasmuch  a.s  a  remainder  must  take  cft'oct  cither  before  or  iininc- 
diately  upon  the  determination  of  the  preceding  estate  ;  it  follows  that 
any  act,  which  destroys  such  estate  before  the  contin<j^ency  happens, 
will  destroy  the  remainder  also.  Hence,  in  En<_dand,  where  a  tenant 
in  tail  or  tenant  for  life,  with  remainders  over,  makes  a  feoffment,  or 
suffers  a  fine  and  recovery,  or  a  recovery  without  fine  or  feoffment ;  as 
by  these  acts  his  estate  is  divested,  the  remainders  also  become  void. 
The  same  effect  follows  from  a  surrender,  to  the  owner  of  the  reversion 
or  a  vested  remainder,  by  tenant  for  life;  or  a  conveyance  to  him  of 
the  reversion  or  a  vested  remainder,  whereby  his  life  estate  is  extin- 
frui.shed.  But  not  from  any  such  conveyance  by  tenant  for  life,  as  will 
pass  only  the  estate  which  he  has ;  such  as  a  bargain  and  sale,  or  lease 
and  release.  It  has  already  been  stated  (ch.  4)  as  the  general  rule  of 
American  law,  that  no  conveyance  by  a  particular  tenant  will  be  effec- 
tual to  pass  more  than  his  own  estate.  Hence,  it  seems,  such  convey- 
ance will  not  in  any  case  operate  to  defeat  contingent  remainders.  But 
perhaps  the  English  law  as  to  the  effect  of  a  surrender  remains  un- 
changed.(l) 

2.  How  far  any  mere  change  m  the  preceding  estate  will  operate  to 
defeat  contingent  remainders,  seems  to  be  an  unsettled  point.  Mr. 
Fearne  supposes  that  the  change  must  be  one  of  quantity,  not  merely 
of  quality.  Thus,  where  the  preceding  estate  was  limited  to  two  per- 
sons, a  release  from  one  to  the  other  was  held  not  to  destroy  the  re- 
mainders. But,  on  the  other  hand,  where  the  particular  estate  de- 
scended to  parceners,  who  made  partition,  it  was  held,  that  the  remain- 
ders were  defeated. (2) 

3.  The  alterations  in  the  estate  preceding  a  contingent  remainder, 
above  referred  to,  are  those  made  by  the  act  of  the  particular  tenant 
himself.  Such  changes  may  also  arise  from  the  acts  of  third  persons ; 
and,  upon  this  point,  the  Ibllowing  distinctions  have  been  made. 

4.  Where  the  same  conveyance,  which  creates  the  particular  estate 
and  the  contiiigent  remainder,  creates  also  the  subsequent  vested  re- 
mainder; or  where  the  reversion  in    fee  desceiuh,  from   a  testator  who 


(1)  rhudleiph's  case,  1  Rep.  135  b;  Co. 
Lit.  252  a;  Archer's  case,  1  Rep.  G6 ;  Lloyd 
V.  Brooking,  I  Ventr.  188;  UalfS  i;.  Ri.sley. 
Pollexlen,  389 ;  Thompson  v.  Leach,  2  Sulk. 
427  ;  Fearne,  4G3,  323  ;  Purcfoy  v.  Rogers, 
2  Saun.  380;  Reeve  r.  Loup,  4  Mod.  234; 
Blosae  v.  Clanniorris,  3   Bligh,  62;    Doe  v. 


Gatacro,  6  Bing.  N.  609 ;  7  Scott,  807  ;  Hole 
f.  Escott,  2  Keen,  444. 

(2)  2  Cruise,  319 ;  Fearne,  337  ;  4  Leon. 
237  ;  Harrison  v.  Belsey,  T.  Ray.  413  ;  I'ure- 
foy  V.  Rogers,  2  Saun.  386.  Partition  be- 
tween tenants  in  common  determines  an  es- 
tate at  will  held  under  one  of  them.  Big. 
Dig.  480. 


544 


REMAINDER— HOW  DEFEATED. 


[CHAP.  XLVn, 

• 


limits  such  particular  estate  and  contingent  remainder,  upon  the  par- 
ticular tenant,  there  will  be  no  merger,  etfectual  to  destroy  the  contin- 
gent remainder;  but  the  two  estates  between  which  it  is  interposed  will 
unite  sub  modo,  and,  when  the  contingency  happens,  will  open  or  sepa- 
rate to  let  in  the  contingent  remainder.  Any  other  construction  would 
manifestly  defeat  the  intention  of  the  party  limiting  the  estates,  both 
in  regard  to  the  particular  estate,  which  would  merge,  and  in  regard  to 
the  contingent  remainder,  which  would  be  destroyed,  by  the  very  act 
which  created  them.(l) 

5.  Limitation  to  A,  and  B  his  wife,  for  their  lives,  after  their  decease 
to  their  first  issue  male,  &c,,  and  for  want  of  such  issue,  to  the  heirs 
male  of  the  body  of  A.  A  and  B  take  an  estate  tail,  subject,  however, 
to  the  condition,  that  upon  the  birth  of  issue  male  the  estate  shall  open, 
and  leave  an  estate  for  life  in  A  and  B,  remainder  to  their  issue  in  tail 
male,  remainder  to  the  heirs  of  the  husband.(2) 

6.  Devise  to  A,  the  testator's  eldest  son,  lor  life  ;  if  he  should  die 
without  issue  living  at  his  death,  then  to  B  in  fee ;  but  if  he  should 
leave  such  issue,  then  to  A's  right  heirs  forever.  Held,  although  the 
reversion  in  fee  descended  upon  A,  he  was  still  tenant  for  life,  with 
contingent  remainders,  which  were  not  defeated.  Nor  could  A's  life 
estate  merge  in  the  remainder  to  his  heirs,  the  latter  being  contin- 
gent.(3) 

7.  But  where  the  particular  tenant,  upon  whose  estate  contingent  re- 
mainders are  limited,  acquires  a  remainder  or  reversion  in  fee,  not  by  a 
limitation  or  a  descent  concurrent  in  time  with  the  creation  of  his  prior 
estate,  but  by  a  subsequent  descent,  though  acting  through  the  party 
who  limited  the  estates  ;  as  the  same  reason  does  not  operate  to  prevent 
a  merger,  which  has  alread}'  been  stated  in  relation  to  the  former  case, 
such  merger  will  take  place  and  the  contingent  remainders  be  destroyed. 

8.  A  was  tenant  for  life,  remainder  to  B,  his  son,  for  life,  remain- 
der to  B's  first  son  in  tail,  remainder  to  the  heirs  of  the  body  of  A. 
A  dies  before  B  has  a  son,  and  the  estate  tail  descends  upon  B.  The 
remainder  to  B's  son  is  destroyed. (4) 

9.  Conveyance  to  the  use  of  A  and  his  wife  for  life,  remainder  to  the 
use  of  B,  the  son  of  A,  for  life,  remainder  to  B's  sons  in  tail,  &c.,  re- 
mainder to  A  in  fee.  A  and  his  wife  die,  living  B.  Held,  B's  life  es- 
tate was  merged  in  the  fee  which  descended  upon  him,  and  the  remain- 
ders destroyed. (5) 

10.  With  respect  to  contingent  remainders,  limited  by  way  qficse, 
how  far  they  are  liable  to  be  destroyed  by  acts  affecting  the  estates 
upon  which  they  depend,  is  a  point  that  has  already  been  somewhat 
considered.  The  celebrated  controversy,  noticed  in  the  last  chapter,  as 
to  the  scintilla  juris,  C/iudleigh^s  case,  &c.,  derives  all  or  most  of  its  ^rac- 
tical  importance  from  its  connection  with  the  question  whether  trustees 
have  power  to  destroj-  contingent  remainders.  Upon  this  subject,  the 
decided  cases,  as  well  as  the  statements  and  opinions  of  elementary 
writers,  are  exceedingly  confused  and  contradictory  ;  and  there  is  great 


(1)  Fearne,  503. 

(2)  Bowles'  case,  11  Rep.  79;  Archer's 
case,  1  Rep.  66  ;  Hales  v.  Risley,  PoUexfen, 
389. 

(3)  Plunket  v.  Holmes,   T.  Ruym.   28;   2 


Cruise,  321;  2  Bos.  &  P.  297. 

(4)  Kent   v.    Harpool,    1    Yent.    306  ;    T. 
Jones,  76. 

(5)  Hooker  v.  Hooker,  Rep.  Temp.  Hardw- 
13  ;  (Duncomb  v.  Duncomb,  3  Lev.  437.) 


€HAP.  XLVII]  REAINDER— HOW  DEFEATED.  545 

rcas(jn  for  the  ivmark  of  Mr.   Preston,  that  the  doctrine  require.sto  be 
settled  by  jiidioial  decisioii.(l) 

11.  With  respect  to  contingent  remainders  hy  xvay  of  use,  Mr.  Cnii.sc 
makes  a  ilislinetion((i)  between  those  which  arise  wilhout  mtij  c/iunye  of 
possesion ^  that  is,  by  a  covenant  to  stand  seized  fo  uses,  or  ijaiyiiu  and 
sale  ;  and  those  created  by  a  ch'tnge  of  possession,  or  by  a  f'.ojfmenl  or  con- 
veyance to  uses.{2)  In  the  former  case  he  says,  that  actual  seizin  is  ne- 
cessary to  give  effect  to  the  remainders,  and  not  a  mere  right  of  entry^ 
as  in  case  of  legal  estates;  because  the  use  arises  oui  of  the  estate  of 
the  covenantor,  and  this,  according  to  the  language  of  the  statute,  must 
be  a  seizin.  Hence,  any  act  or  transf(?r  of  the  covenantor,  bv  which  his 
ticizin  is  divested,  defeats  the  subsequent  contingent  remainders. 

12.  A  covenants  to  stand  seized  to  the  use  of  himself  for  life,  remainder 
to  the  use  of  B  for  life,  remainder  to  the  use  of  C  for  life,  remainder 
to  the  use  of  the  first  son  of  C  in  tail  male,  with  the  reversion  in  fee  to 
A.  A  grants  the  reversion  to  D,  without  consideration,  and  reciting 
the  uses;  and  afterwards  makes  a  feolfment  of  the  land.  After  A's 
death,  B  enters,  and  dies  seized,  C  having  died  previously.  It  was  held, 
that  the  contingent  remainder  to  the  son  of  C  was  not  defeated  by  the 
grant  and  feolfment  of  A  ;  that  D  took  the  reversion  charged  with  the 
uses,  and  the  feoffment  could  not  defeat  D's  right  of  entry  ;  and  that 
the  entry  of  B  (operated  to  revest  D's  estate,  and  restore  a  seizin  which 
would  support  the  contingent  remainder.  If  A  had  made  the  feoffment 
before  granting  the  reversion,  as  the  law  would  not  allow  him  to  re-en- 
ter against  his  own  deed,  the  entry  of  B  would  not  enure  to  his  benefit, 
and  the  contingent  remainders  would  therefore  be  destroyed. (8)(i) 

18.  Mr.  Cruise  proceeds  to  reraark,(4)  that,  where  a  limitation  to  uses 
is  made  by  some  conveyance  which  operates  by  a  change  of  possession, 
the  doctrine  established  in  Chndleigh^s  case  would  lead  to  the  conclu- 
sion, that  any  act  which  divests  and  turns  to  a  right  the  particular,  pre- 
ceding estate,  destroys  the  contingent  uses,  unless  either  the  particular 
tenant  or  the  feoffee  to  uses  re-enters ;  for  otherwise  no  possibility  of 
entry  or  "  scintilla  juris,"  remains  to  constitute  the  seizin,  out  of  which 
uses  must  arise.  The  doctrine  of  that  case  is,  that  the  grantee  to  uses 
is  considered  the  donor  of  all  the  contingent  estates  when  they  vest. 
This  princi!)le,  however,  has  been  strongly  contested  bv  Lord  Ch.  J. 
Ponex{en,(o)  upon  the  grounds  that  it  would  place  a  dangerous  power 
in  the  hands  of  those  who  are  seized  to  uses,  who  are  said  to  be  gener- 
ally "  strangers  and  mean  persons,"  and  greatly  endanger  the  security 
of  titles;  by  enabling  grantees  to  uses  to  deprive  themselves,  by  their 
own  unlawful  acts,  of  a  right  of  entry,  and  thus  defeat  all  contingent 
estates  limited  by  way  of  use.  Tlie  same  judge,  and  also  Mr.  Fearne,(6) 
urge  the  still  stronger  consideration,  in  opposition  to  this  principle,  that 


(1)  Prcst.  on  Est  184. 

(2)  2  Cruise,  324-5. 

(3)  Wi't,'is'  V.  Villers,  2  Rolle's  Abr.   796; 
Lloyd  V.  Brooking,  1  Vent.  188. 


(4)  2  Cruise,  325. 

(5)  Hales  v.  Risley,  Pollexfen,  383  ;  Treat, 
of  Eq.  B.  2,  cli.  6,  sec.  1. 

(6)  Fearne,  300. 


(a)  I  liave  been  unable  to  And  any  case  wliero  this  distinction  is  expressly  recognized. 

{li)  riiesf  limitations  and  sut)sequi'nt  transfers  were  made  by  Lord  Coke,  for  tiio  purpose 
of  enal>lin.^'  liiin  to  preserve  or  destroy  the  coniiii,'ent  remainder  at  his  discretion,  by  pro- 
ducing liie  grant  and  destroying  the  feoffment,  or  the  converse.  But,  it  is  said,  lie  dild  be- 
fore executing  hia  plau. 

Vol.  I.  35 


546  REMAINDER— HOW  DEFEATED.  [CHAP.  XLVIL 

it  is  in  direct  contradiction  to  the  words  and  uniform  construction  of 
the  statute  of  uses;  according  to  which,  the  grantee  to  uses  is  a  mere 
instrument  or  condvit pipe^  all  his  estate  being  immediately  taken  and 
transferred  out  of  him,  as  if  never  vested.  The  cestui  que  use  is  seized, 
"  to  all  intents,  constructions  and  purposes  in  the  law,"  as  a  grantee  to 
uses  would  be  before  the  statute  ;  and  one  of  the  legal  qualities  of  a 
legal  estate  is,  that  where  a  particular  tenant,  though  deprived  of  his 
estate,  has  left  in  him  a  right  of  entry^  this  is  suflficient  to  support  sub- 
sequent contingent  remainders.  Hence,  where  such  right  remains  in 
the  cestui^  no  divesting  of  the  estate  from  the  trustees  would  seem  suffi- 
cient to  defeat  such  remainders. 

14.  The  doctrine  that,  where  a  limitation  to  uses  operates  by  a  cliange 
of  possession^  (although  no  peculiar  effect  seems  to  have  been  attributed 
to  this  circumstance,)  contingent  remainders  maybe  defeated  by  the  act 
of  the  trustees  in  transferring  the  estate,  derives  its  great  support  from 
Chudleiglis  casp,(l)  Avhich  has  been  already  several  times  referred  to. 
In  this  case,  A  enfeoffed  several  persons  to  the  use  of  them  and  their 
heirs,  during  the  life  of  B,  remainder  to  the  use  of  the  first  and  other 
sons  of  B  in  tail.  Before  B  had  a  son,  the  trustees  conveyed  to  B  in 
fee,  without  consideration,  and  with  notice  of  the  uses.(a)  B  afterwards 
had  a  son.  Held,  the  remainder  to  this  son  was  destroyed  by  the  feoffment 
of  the  trustees,  which  operated  as  a  forfeiture  of  the  particular  estate. 

15.  Many  other  cases  are  to  be  found  in  the  books,(2)  which  settle 
substantially  the  same  principle.  These  are  generally  cases  of  Q,  feoff- 
ment made  b}^  the  trustee  or  by  the  particular  tenant,  whereby  the  par- 
ticular estate  is  defeated.  The  same  principle  is  applied  to  springing  or 
shifting  uses,  which  are  not  strictly  remainders,  though  hardly  distin- 
guishable from  them.  Thus,  a  devise  of  the  land,  from  which  such 
uses  are  to  arise,  will  defeat  them  ;  though,  it  seems,  a  mere  devise  of 
portions  from  it  will  not. 

16.  A  levied  a  fine  to  the  use  of  himself  and  his  heirs,  till  a  marriage 
had  between  B,  his  son,  and  C,  then  to  the  use  of  A  for  life,  remainder 
to  B  in  tail,  &c.  The  marriage  took  place,  A,  however,  having  previ- 
ously devised  portions  from  the  land  to  his  daughters,  and  died.  Held, 
a  devise  of  the  laud  itself  would  have  defeated  the  future  use;  but  it 
was  doubted  whether  a  mere  devise  of  portions  from  it  had  this  effecf.(3) 

17.  Whether  a  mere  lease  for  years,  or  the  grant  of  a  rent  from  the 
land,  will  wholly  defeat  the  future  use,  seems  to  be  a  doubtful  point, 
though  the  weight  of  authority  is  that  it  will  not.  But  such  transfer 
has  been  held  to  bind  the  use  when  it  arises,  2y^'o  tanto.  Even  this  point, 
however,  was  disputed  by  Fenner,  J.,  in  WoodY.  IieignoId,{4:)  who  said, 
"the  same  freehold  remains,  and  the  use  is  annexed  to  thekase,  and  there- 

(1)  1  Rep.    120;  Dillon   v.    Fraine,  Poph.  I  case,  Dyer,  340  a;  Brent's  case,  2  Leon.  14. 
10.  (3)  2  Cruise,  328. 

(2)  Biggot  V.  Smjth,  Cro.  Car.  102  ;  Brent's  j      (4)  "Wood  v.  Reignold,  Cro.  Eiiz.  854. 


(a)  In  another  case,  (Wood  v.  Reignold,  Cro.  Eliz.  764,)  though  recognizing  the  general 
doctrine,  that  contingent  uses  may  be  defeated  by  the  feoffee,  upon  the  grounds,  that  the  use 
ought  to  arise  out  of  the  estate  which  the  covenantor  had  at  the  lime  of  the  covenant,  and 
at  tiie  statute  executes  only  vested  uses  or  those  in  esse,  leaving  contingent  uses  fes  at 
mnioulaw;  it.is  h  timated  that,  according  to  the  very  reason  of  tlie  rule  last  named,  a 
arty  taking  the  land,  without  consideration  or  with  notice,  is  chargeable  with  the  contingent 
se  when  it  arises. 


CHAP.  XL VII.] 


IIEMAINDER— UOW  DEFEATED. 


647 


fore  the  lease  shall  not  disturb  nurbiiul  it,"  So,  in  IJouldv.  WinstonX^) 
where  the  party  eoveuuntin^  to  stand  seized,  renuiined  seized  of  the  re- 
version in  fee,  and  aiteru'ards  made  a  lonjf  lease  to  delit;at  the  contin- 
••■ent  remainder  ;  it  was  held,  that  the  lease  should  take  elleet  out  of  the 
reversion,  and  not  in  such  way  as  to  defeat  the  remainder.  In.  another 
case,(2)  a  lease  was  held  wholly  to  defeat  the  contingent  -ase, 

lb.  The  cases  in  which  a  conveyance  made  by  a  feoffee  or  covenaa- 
tor  to  contin^^ent  uses,  has  been  held  to  defeat  such  uses,  are  said  to  be 
very  unsatistaetory,  and  to  be  contradicted  by  others  of  equal  authority, 
one'  of  which  was  decided  by  the  House  of  Lords.(o) 

19.  Chancellor  Kent  says,(4)  in  equity,  the  tenant  for  life  of  a  trust 
cannot,  even  by  a  line,  destroy  the  contingent  remainder  dependent 
thereon  ;  and  it  will  only  operate  on  the  estate  he  can  lawfully  grant. 
A  court  of  equity  does  not  countenance  the  destruction  of  contingent 
remainders.  So,  any  conveyance  of  a  thing  lying  in  grant  does  not  bar 
a  contingent  remainder;  nor  a  conveyance  deriving  effect  Irom  the 
statute  of  uses  ;  because  neither  of  these  passes  anything  more  than  the 
grantor  has  a  legal  title  to.  There  are  also  some  acts  of  a  tenant  for 
life,  which,  though  amounting  to  a  forfeiture,  and  authorizing  an  entry 
by  a  subsequent  vested  remamder-man,  do  not  destroy  the  contingent 
remainder,  unless  such  entry  or  other  equivalent  act  be  made  or  done. 
The  same  author  also  remarks,(5)  that  (Jhudkiylth  case  is  a  strong  au- 
thoritv  to  prove  that  a  feoffment  Avithout  consideration,  and  even  with 
notice  in  the  feoffee  of  the  trust,  will  destroy  a  contingent  remainder. 
It  is  a  doctrine  flagrantly  unjust,  and  repugnant  to  every  settled  prin- 
ciple in  equity,  as  now  understood. 

20.  Very  few  cases  have  occurred  in  the  United  States,  in  which 
the  question,  as  to  the  power  of  the  particular  tenant  to  defeat  con- 
tingent remainders,  has  arisen.  In  an  early  case  in  Pennsylvania,(6) 
a  tenant  for  life,  with  contingent  remainders  depending  upon  his 
estate,  had  suffered  a  common  recovery;  and  the  judges  were  divided 
in  opinion  as  to  the  effect  of  this  proceeding  upon  the  remainders. 
Ch.  J.  Tilghman,  who  was  of  opinion  that  the  I'emainders  were  de- 
stroyed, remarks  as  follows: — The  great  Ilamilton  estate,  near  Phila- 
delphia, was  tied  up,  by  the  late  Gov.  Hamilton's  will,  to  a  number  of 
life  estates,  with  contingent  remainders  depending  on  them ;  but  he 
omitted  to  appoint  trustees  for  preserving  the  contingent  remainders. 
Under  the  direction  of  very  able  counsel,  common  recoveries  were 
suffered,  for  the  purpose  of  destroying  the  contingent  remainder.-^,  and 
many  estates  were  sold  for  valuable  and  full  considerations,  on  the 
faith  of  the  common  law,  which  had  never  been  altered,  either  by  act 
of  assembly  or  judicial  decision.  The  objection,  that  the  law  oi'  for- 
feiture is  founded  on  feudal  principles,  is  of  no  weight.  Those  prin- 
ciples are  so  interwoven  with  every  part  of  our  system  of  jurisprudence, 
that  to  attempt  to  eradicate  them  would  be  to  destroy  the  whole.  They 
are  massy  stones  worked  into  the  foundation  of  our  legal  edifice.  Most 
of  the  inconveniences  attending  them  have  been  removed,  and  the  few 


(1)  Bould  V.  Winston,  Cro.  Jaa  1G8;  Noy, 
122. 

(2)  Barton's  case,  Moo.  743. 

(3)  2  Cruise,  332 ;  Smith  v.  Warren,  Cro. 
Eliz.  688. 


(4)  4  Kent,  253-4. 

(5)  4  Kent,  252,  n. 

(6)  Duuwoodie  v.  Reed,  3  S.  i  R.  447- 


548  REMAINDER— HOW  DEFEATED.  [CHAP.  XLVII. 

that  remain  may  easily  be  removed,  by  acts  of  the  legislature.  In  that 
way,  the  future  may  be  provided  for,  without  injuring  the  past.  But 
should  this  court  undertake  to  shake  a  principle  which  has  become  a 
rule  of  property,  the  mischief  would  be  incalculable.  I  doubt  very 
much,  whether  it  be  not  the  policy  of  this  country  to  facilitate  the  de- 
struction of  contingent  remainders,  (as  well  as  of  estates  tail.)  They 
tend  to  prevent  the  free  enjoyment  and  alienation  of  land  ;  whereas, 
the  spirit  of  our  constitution  and  laws  has  a  direct  contrary  tendency. 
They  tend  to  throw  large  estates  into  one  hand  ;  but  the  object  of  our 
laws  is  to  divide  them  among  many, 

21.  On  the  other  hand,  in  the  same  case,(l)  Gibson,  J.,  says,  entail- 
ment and  contingent  remainders  stand  on  different  ground.  Indefinite 
restriction  on  alienation  is  contrary  to  the  genius  of  our  laws  ;  but  re- 
striction to  a  reasonable  extent  is  tolerated.  Land  ought  not  to  be 
transmissible  like  chattels.  Convenience,  and  the  state  of  society  in 
this  couutr}',  begin  to  require  a  more  complex  settlement  and  disposi- 
tion of  real  property  than  has  hitherto  prevailed.  This,  it  is  said,  may 
be  effected,  and  these  contingent  interests  secured,  by  interposing  trus- 
tees to  preserve  contingent  remainders.  But  this  is  a  form  of  limita- 
tion rarely  thought  of,  especially  where  the  disposition  of  property  is 
the  last  act  of  a  man's  life. 

22.  In  the  case  of  Carver  v.  Jackson,{2)  it  seems  to  have  been  taken 
for  granted,  that  the  confiscation  of  a  preceding  estate  for  life  will  de- 
feat contingent  remainders  depending  upon  it.  And  in  South  Carolina 
a  feoffment,  with  livery  of  seizin,  by  tenant  for  life,  bars  contingent 
remainders.(8)(a) 

(1)  Dunwoodie  v.  Reed,  3.  S  &  R.  457.        I      (3)  Dehon  v.  Redfern,  Dudl.  Eq.  115.    See 

(2)  4  Pet.  1.  I  Brewer  v.  Hardy,  22  Pick.  376. 

(a)  In  Virginia,  it  is  said,  tlie  law  on  this  subject  lias  been  essentially  changed  by  statute, 
and  the  policy  of  the  legislature  has  been,  to  place  contingent  remainders  beyond  the  reaeh 
of  accident  to  the  particular  estate.  Trustees  to  preserve  contingent  remainders  are  no 
longer  in  much  use.  1  Lom.  457,  463.  In  Massachusetts,  no  expectant  estates  shall  be 
barred  (except  in  case  of  entailments)  by  any  act  of  tlie  immediate  owner,  or  any  destruc- 
tion of  his  estate  by  disseizin,  forfeiture,  surrender  or  merger.  Rev.  St.  405.  Devise  to  A, 
for  life,  remainder  to  B  and  C  to  preserve  contingent  remainders,  remainder  to  the  issue  of 
A  in  tail  male.  If  A  renounce  or  disclaim  the  life  estate,  B's  and  C's  remainders  take 
effect,  and  preserve  the  contingent  remainder.     "Webster  v.  Oilman,  1  Story,  499. 


CnAP.  XLYIIL]     REMAINDER,     TRUSTEES  TO  PRESERVE,  ETC. 


54:9 


CHAPTER   XLVTTI. 

REMAINDER.     TRUSTEES  TO  PRESERVE  CONTINGENT  REMAINDERS. 


1.  Origin  and  history. 

3.  Trn.stees  take  aii  estate. 

4.  May  destroy  the  remainders ;  but  it  is  a 

breach  of  trust. 

5.  Exceptions — remote  relations  may  be 

barred. 
V.  If  remainder-men  join  ;    no  breach  of 
trust. 


8.  Chancery  sometimes  directs  a  convey- 
ance in  favor  of  mortgagees,  credit- 
ors, &c. 
12.  But  generally  will  not  interfere. 

16.  Trustees  cannot  safely  defeat   the  re- 

mainders. 

17.  Power  and  duty  in  caso  of  waste. 


1.  From  the  rule,  that  the  alienation  or  forfeiture  of  a  preceding 
estate  for  life  would  defeat  contingent  remainders  limited  upon  such 
estate,  the  practice  arose,  of  limiting  an  intermediate  estate  to  trustees,^ 
to  take  effect  upon  the  termination  of  the  life  estate  before  the  death  of 
the  tenant,  and  continue  during  his  life.  The  invention  is  ascribed  to 
Sir  Orlando  Bridgeman  and  Sir  Geoffrey  Palmer,  who,  during^  the 
civil  wars,  devoted  themselves  to  the  business  of  conveyancing.  Such 
trustees  are  called  trustees  to  preserve  contingent  remainders.(l) 

2.  Lord  Hardwicke  remarks,  that  the  practice  in  question  arose  from 
the  decision  of  tw^o  great  cases,  reported  by  Lord  Coke,  viz:  Chud- 
leiglis  case  and  Archers''  case,  though  it  was  several  years  after  those 
cases  before  that  light  was  struck  out;  and  it  was  not  brought  into 
general  use  till  the  time  of  the  usurpation,  when  probably  the  providing 
against  forfeitures  for  what  was  then  called  treason  and  delinquency, 
was  an  additional  motive  to  it.(2) 

3.  It  was  formerly  questioned,  whether  trustees  to  preserve  remain- 
ders, after  a  prior  limitation  for  life,  took  any  estate  in  the  land,  or 
merel)'  a  right  of  entry  upon  the  forfeiture  or  surrender  of  the  tenant 
for  life;  by  reason  that  tlie  limitation,  being  only  during  his  life,  could 
not  commence  or  take  elfect  after  his  death.  But  it  was  settled  in 
Gliohnondele-i/s  case.,  and  Duncomh  v.  Duncomh,  that  they  take  a  vested 
remainder.  And  ih\s  \s  a  fortiori  the  case,  where  the  prior  estate  is 
only  for  years,  because  the  first  freehold  is  then  in  the  trustees.  It  has 
also  been  argued,  that  the  interposition  of  trustees  to  preserve,  &c.,  was 
not  intended  to  alter  the  legal  rights  of  a  preceding  tenant  for  life,  or 
of  the  ultimate  remainder-man  in  fee.  But  the  court  held,  that  such 
interposition  was  designed  to  abridge  the  legal  rights  of  both  these 
parties;  the  right  of  the  former  to  destroy  the  contingent  use  of  the 
inheritance,  while  it  remains  contingent;  and  the  right  of  the  latter  to 
destroy  it,  by  accepting  a  surrender.(3) 

4.  A  trustee  to  preserve  contingent  remainders  has  the  power  to 
defeat  them,  by  joining  in  a  conveyance  wnth  the  preceding  tenant. 
Such  trustee  has  been  called  honorary,  as  signifying  a  discretionary 
power  in  this  respect.  But  this  act  is  a  plain  breach  of  trust,  and  a 
grantee,  without  consideration  or  with  notice,  will  take  the  land  charged 
with  the  trust.     It  is  said,  that  should  the  court  hold  it  to  be  no  breach 


(1)  2  Cruise,  336-7. 

(2)  Garth  r.  Cotton,  Dickens,  183. 


I      (3)  Garth  v.  Cotton,  Dickens,  183;  2  Co. 
5  a;  Duncomb  v.  Duncomb,  3  Lev.  437. 


550 


REMAINDER.     TRUSTEES  TO 


[CHAP.  XLTin. 


of  trust,  or  pass  it  by  with  impunity,  it  would  be  making  proclamation, 
that  the  trustees  in  all  the  great  settlements  in  England  were  at  liberty 
to  destroy  what  they  had  been  entrusted  only  to  preserve.  In  case  of 
a  conveyance  for  consideration  or  without  notice,  the  trustee  will  be 
decreed  to  purchase  other  lands  of  equal  value,  and  hold  them  upon 
the  same  trusts.(a)  These  principles  were  first  solemnly  settled  in  the 
great  case  of  Mansell  v.  Ilansell,  which  was  decreed  by  Sir  J.  Jekyll, 
at  the  Rolls,  and  afterwards  by  Lord  King,  assisted  by  Lord  Raymond 
and  Lord  Ch.  Baron  Reynolds.  Lord  Raymond  said,  it  was  strange  in 
natural  reason  to  say,  that  where  a  man  hath  created  a  trust  to  preserve 
his  estate,  the  trustees  may  break  that  trust  and  give  away  the  estate 
with  impunity. (1) 

5.  This  rule,  however,  seems  to  have  been  established,  chiefly  for 
the  protection  of  the  immediate  parties  to  a  settlement  or  their  issue ; 
and  not  to  have  been  extended  to  the  relief  of  remote  collateral  heirs. 
The  former  are  regarded  in  law  as  purchasers;  the  latter  as  mere  vol- 
untary claimants,  not  entitled  to  the  aid  of  a  court  of  equity. 

6.  A  settlement  was  made  in  consideration  of  a  marriage  and  a 
fortune,  for  the  purpose  of  settling  the  lands  in  the  name  and  blood  of 
the  husband.  Limitation  to  trustees,  in  trust  for  the  husband  for  nine- 
ty-nine years,  if  he  should  so  long  live,  remainder  to  trustees  during 
his  life  to  support,  &c.,  remainder  to  the  sons  of  the  marriage,  remain- 
der to  the  heirs  of  the  body  of  the  husband,  remainder  to  his  right 
heirs.  After  the  marriage,  the  husband  and  wife  and  trustees  to 
support,  joined  in  a  fine  and  conveyance,  with  different  limitations  from 
those  stated,  providing  a  jointure,  and  giving  the  ultimate  remainder 
to  strangers.  Husband  and  wife  having  died  without  issue,  the  heirs 
of  the  former  brought  a  bill  to  set  aside  the  latter  conveyance.  Held, 
they  were  not  entitled  to  relief  (2) 

7.  If  the  party  to  whom  a  remainder  is  limited  join  the  trustees  in 
their  conveyance,  this  will  be  no  breach  of  trust.  And  upon  a  similar 
principle,  where  such  remainder  is  limited  to  the  heirs  of  the  body  of  A, 
and  is  therefore  contingent,  if  the  eldest  sou  or  heir  apparent  of  A  join 
the  trustees  in  a  conveyance,  and  afterwards  die.  Chancery  will  not 
set  aside  the  conveyance  on  application  of  a  second  son  of  A,  during 
his  fixther's  life,  because  it  is  uncertain  whether  he  will  survive  his 
father,  and  therefore  come  under  the  designation  of /ieiV.(3) 

8.  A  court  of  chancery,  under  some  circumstances,  will  direct 
trustees  for  preserving  contingent  remainders,  to  join  in  conveyances 
made  for  the  purpose  of  barring  such  remainders.  Thus,  where  a 
mortgage  was  made  of  the  land,  before  the  settlement  by  which  the 
remainders  are  limited,  and  after  such  settlement  the  party  who  made 
it  contracts  for  a  sale  of  the  equity  of  redemption  ;  and  the  proposed 
purchaser  files  a  bill  against  the  settler  and  the  trustees,  praying  that 


(1)  Woodhouset).  Hoskina,  3  Atk.  22;  Pye 
V.  Gor<re,  1  P.  Wms.  128;  Mansell  v.  Mansell, 
2  P.  Wms.  678;  For.  252  ;  2  Abr.  Eq.  747. 


(2)  Tipping  v.  Pigot,  1  Ab.  Eq.  385. 

(3)  Else  V.  Osborn,  1  P.  Wms.  387. 


(a)  Lord  King  said  (2  P.  Wms.  678)  that  though  these  points  had  not  been  before  judi- 
cially determined,  yet  it  seemed  to  the  court  in  common  sense,  reason  and  justice,  to  be 
capable  of  no  other  construction  ;  Lord  Harcourt,  (1  P.  Wms.  128,)  that  if,  as  was  said,  there 
was  no  precedent,  ho  would  ninke  one;  and  (Tipping  v.  Pigot,  1  Ab.  Eq.  385,)  that  it  would 
bo  dangerous  for  any  trustees  to  make  the  experiment,  and  if  it  should  ever  come  in  ques- 
tion, he  thought  the  court  would  set  aside  such  a  conveyance. 


CHAP.  XLVIir.]        PRESERVE  CONTINGENT  REMAINDERS.  551 

they  may  join  in  a  conveyance  to  him,  averring  that  there  are  no 
issue  for  whose  benefit  the'tru.st  was  created,  and  that  the  mortgagee 
will  foreclose  unless  the  mortgage  is  redeemed,  which  the  settler  is 
unable  to  do;  and  the  defendants  by  their  answers  submit  to  the 
direction  of  the  court:  the  conveyance  prayed  for  will  be  decreed,  the 
trustees  being  indemnified,  and  the  wile  of  the  settler,  one  of  the 
objeets  of  the  settlement,  being  privately  examined  to  ascertain  her 
cousent.(l) 

9.  So,  also,  Chancery  will  decree  that  trustees  join  in  a  conveyance, 
where  the  first  remainder  has  become  vested,  and  it  is  for  the  interest 
of  this  remainder-man  to  make  the  conveyance,  although  subsequent 
remainders  are  limited.  If  there  is  a  subsequent  remainder-man  in 
esse,  it  seems  the  trustees  will  be  required  to  give  security  for  his  inter- 
est; if  not,  the  fiict  that  the  parents,  to  whose  future  children  subse- 
quent remainders  are  limited,  are  still  living,  will  not  be  regarded. 
The  most  common  case  in  which  such  decree  is  made,  is  where  the  first 
remainder-man  is  about  to  contract  an  advantageous  marriage,  and  a 
new  settlement  of  the  estate  becomes  necessary  for  this  purpose  ;  more 
especially  if  the  efTect  will  be  to  preserve  the  estate  in  the  family, 

10.  A  was  tenant  for  ninety-nine  years,  if  he  should  so  long  live ; 
remainder  to  trustees  and  theirlieirs  for  his  life,  to  support  contingent  re- 
mainders ;  remainder  to  his  first  and  other  sons  in  tail  male ;  remainder 
to  trustees  for  years,  to  raise  portions  for  daughters,  if  there  were  no 
issue  male.  A  having  a  son,  who  was  of  age  and  about  to  marry,  and 
also  a  daughter,  and  the  mother  being  still  alive,  the  father  and  son 
brought  a  bill  in  equity,  to  have  the  trustees  join  in  making  an  estate, 
in  order  that  a  recovery  might  be  had,  for  the  purpose  of  making  a 
marriage  settlement.  Decreed,  that  the  trustees  should  join  in  the  re- 
covery, upon  giving  security  for  the  daughter's  portion.(2) 

11.  So  also,  it  is  said,  Chancery  will  order  trustees  to  join  in  defeat- 
ing contingent  remainders,  upon  the  application  of  creditors,  where  such 
remainders  were  limited  by  a  voluntary  settlement.(3) 

12.  There  are  many  cases,  however,  where  the  Court  of  Chancery  has 
refused  to  order  trustees  for  preserving  contingent  remainders  to  join 
in  barring  them.  And  it  may  refuse  so  to  order,  although,  if  the  trus- 
tees actually  joined,  they  would  not  be  chargeable  with  a  breach  of 
tru.-t ;  because,  in  settling  this  point,  the  reasons  and  motives  only  of 
the  trustee  would  be  taken  into  view. (4) 

lo.  Lands  were  limited  to  husband  and  wife  for  life,  remainder  to  a 
trustee  to  preserve,  &e.,  remainder  to  their  first  and  other  sons  in  tail. 
Twelve  years  after  the  marriage,  having  had  no  children,  the  husband 
and  wife  brought  a  bill,  praying  that  they  might  be  enabled  to  sell  the 
land  for  payment  of  the  husband's  debts.  The  trustee  did  not  object, 
upon  condition  of  being  indemnified.  Ileld,  the  court  would  still 
regard  tlie  p(_)ssibility  that  children  might  be  born,  and  the  application 
was  refused. (5) 

14.  Limitation  to  A  for  ninety-nine  yeans,  if  he  should  so  long  live, 
remainder  to  trustees  for  his  life,  to  preserve,  kc,  remainder  to  his 
wife,  remainder  to   the  first  and  other  sons  in   tail   male.     The  wife 


(1)  Plait  V.  Spriger,  2  Yern.  303. 

(2)  Frewiii  v    Cliarlton,   1  .'Vl>r.   Equ.  386 ; 
(T^^iuuington  v.  Folev,  1  P.  Wins.  63G.) 


(3)  Fearne,  331 ;  2  Cruiso,  3 12-3. 

(4)  Woodhouse  v.  Hoskins,  3  Atk.  22, 

(5)  Davies  v.  Weld,  1  Abr.  Eq.  3S6. 


552  REMAINDER.     TRUSTEES  TO  PRESERVE,  ETC.     [CHAP.  XLTIII. 

having  died,  and  there  being  two  sons,  B  and  C,  A  and  B  (who  was 
of  age)  covenanted  with  D,  to  whom  A  had  mortgaged  the  land,  that 
they  would  suffer  a  recovery,  and  procure  the  trustees  to  join.  The 
latter  refused.  Upon  a  bill  by  D  against  A,  B  and  C,  praying  specific 
performance,  and  that  the  trustees  might  join  ;  the  bill  was  dimissed, 
because  C  did  not  consent,  and  the  conveyance  would  operate,  not  to; 
preserve  the  estate  in  the  famil}',  as  m  some  other  cases,  but  to  pass  it 
to  strangers.(l) 

15.  A  father  devised  to  A,  his  eldest  son,  for  ninety-nine  years,  if 
he  should  so  long  live,  remainder  to  trustees  during  x\'s  life,  to  pre- 
serve, &c.,  remainder  to  A's  first  and  other  sons  in  tail  male,  remainder 
to  B,  a  second  son,  for  ninety-nine  years,  (as  above,)  remainders  over. 
The  will  empowered  his  sons  to  revoke  these  uses,  and  appoint  new  uses, 
provided  they  limited  them  to  their  sons  for  ninety-nine  years,  and  in 
strict  settlement ;  with  other  powers  and  directions,  tending  to  preserve 
the  estate  in  his  family.  A  died  without  issue,  and  B  came  into  pos- 
session of  the  estate,  and  had  an  only  son,  C,  who  was  of  age.  B  bor- 
rowed money,  for  which  B  and  C  became  bound ;  and  afterwards  B 
and  0  covenanted  to  convey  the  estate  to  the  creditors,  in  trust  to  sell, 
pay  their  debts,  and  restore  the  surplus  to  B.  The  creditors  bring  a 
bill  against  B  and  C  for  specific  performance,  and  against  the  heir  of 
the  surviving  trustee  to  preserve,  &c.,  praying  that  he  might  join  in 
conveying.  Held,  the  power  of  revocation  in  the  will  showed  the  tes- 
tator's intent  to  make  a  strict  settlement,  and  keep  the  estate  in  his 
family ;  that  the  inconveniences  of  having  an  estate  for  years  instead 
of  a  freehold  vested  in  B,  as  tending  to  a  perpetuity,  were  balanced  by 
the  advantage  of  preventing  an  alienation  by  B,  in  which,  if  he  had 
the  freehold,  he  might  compel  the  son,  who  was  of  course  greatly  under 
his  control,  to  join  ;  that  the  probable  object  of  thus  limiting  the  estate 
was  to  avoid  the  danger  of  the  son's  becoming  bound  for  the  father's 
debts ;  that  the  proposed  conveyance  was  not  designed  to  effect  a  mar- 
riage settlement,  or  pay  the  debts  of  C,  or  justified  by  any  peculiar  mis- 
fortune in  the  family ;  and  that  0,  being  only  a  remainder-man,  with 
no  vested  freehold,  was  not  to  be  considered  owner  of  the  estate,  with 
power  over  the  rights  of  other  remainder-raen.(2) 

16.  It  is  said  that  it  would  be  a  dangerous  experiment  for  trustees  in 
anj^case  to  destroy  remainders,  which  they  were  appointed  to  preserve. 
In  a  late  case,(3)  Lord  Eldon  remarked,  that  the  act  which  they  were 
decreed  to  do,  should  be  such  as  they  ought  to  do.  The  proposition, 
that  trustees  are  never  to  join  without  direction  of  the  court,  is  the  re- 
sult of  great  caution,  but  amounts  to  this,  that  the  judges  of  the  Court 
of  Chancery  are  the  trustees  to  preserve  all  the  contingent  remainders 
in  the  country,  and  no  one  could  say  what  was  to  be  done,  till  a  decree 
had  been  obtained.     But  this  principle  cannot  be  sustained. 

17.  Trustees  to  preserve  a  contingent  remainder,  limited  after  the 
death  of  the  particular  tenant,  during  his  life,  are  tenants  pour  autre 
vie.  Ilence,  they  cannot  maintain  an  action  for  waste,  which  lies  only 
for  the  owner  in  fee.     But,  on  the  other  hand,  as  their  ofiice  is  to  pre- 


(1)  Townseiid  V.  Lawton,  2  P.  "Wms.  379. 

(2)  Woodhouse  v.  Iloskiiis,  3  Atk.  22 ; 
(Barnard  v.  Large,  Amb.  774 ;  King  v.  Cotton, 
2  P.  Wms.  674,  n.) 


(3)  Pye  V.  Gorge,  2  P.  Wms.  684 ;  iloody 
V.  Walters,  16  Ves.  283. 


CHAP.  XLIX.]     REMAINDER— DOCTRINE  OF  ABEYANCE,  ETC. 


553 


serve  the  contingent  estates,  they  are  bound  to  preserve  tlie  inheritance 
as  entire  as  possible  ;  which  inheritance  consists  of  the  land,  timber  and 
mines.  Hence  they  may  undoubtedly  bring  a  bill  in  Chancery,  for  an 
injunction  to  stay  waste  ;  and,  if  they  consent  to  the  felling  and  sale  of 
timber,  join  with  tlie  tenant  ibr  3'ears,  and  the  ultimate  remainder-man  in 
fee,  in  an  agreement  therefor,  by  which  the  proceeds  are  to  be  c'qually  di- 
vided between  them,  and  expressly  covenant  to  bring  no  bill  lor  an  in- 
junction ;  they  are  clearly  liable  for  a  breach  of  trust,  as  for  an  alienation 
of  part  of  the  inheritance.  The  tenant  for  years  and  remainder-man  in  fee 
are  also  liable,  having  notice  of  the  breach  of  trust  and  reaping  the  bene- 
fits of  it.  If  it  is  a  breach  of  trust,  and  the  trustees  convey  the  estate, 
a  court  of  equity  is  not  to  sit  still,  and  let  others  profit  by  the  spoil.(l) 
And  these  parties  are  equally  liable,  ^vhether  the  tru-^tee  commits  any 
positive  act,  or  is  merely  guilty  of  laches  in  not  performing  the  trust, 
and  bringing  a  bill  for  injunction. 

18.  Upon  these  grounds,  where  waste  has  been  committed  by  the  par- 
ticular tenant  and  the  remainder-man  in  fee,  and  the  timber  sold,  and 
after  the  death  of  the  former  the  estate  vests  in  his  son,  to  preserve 
whose  remainder  trustees  were  appointed  ;  the  son  may  maintain  a  bill 
in  equity  against  the  remainder-man  in  fee  for  restitution  of  the  amount 
which  he  received  from  the  sale,  although  the  waste  was  committed 
when  the  plaintiff  had  neither  jus  in  re  nor  jus  ad  reyn,  before  he  was  in 
rerian  natura.  If  timber  were  blown  down  by  accident,  or  cut  by  a 
stranger  or  by  the  tenant  for  life  alone,  it  seems,  the  property  of  it 
would  vest  in  the  remainder-man  in  fee.  This  is  a  legal  right,  with 
which  equity  will  not  interfere.  But  wherever  a  legal  right  is  ac- 
quired or  exercised  by  fraud  or  collusion  contiary  to  conscience,  equity 
will  enjoin  it  or  decree  compensation.  Ileuce,  in  this  case  it  will  inter- 
fere, on  account  of  the  mutual  agreement  between  the  tenant  for  life 
and  the  remainder-man. (2) 


CHAPTER    XLIX. 


REMAINDER— DOCTRINE  OF  ABEYANCE.— CONDITION  OF  THE  FEE,  IN  CASE 
OF  CONTINGENT  REMAINDERS. 


1.  Limitation  to  uses — use  results. 
4.  Limitation  by  devise. 


10.  Limitation   by  common  law   convey- 
ance. 


1.  Where  a  remainder  of  inheritance  is  limited  in  contingency  by- 
way of  use,  the  inheritance,  in  the  meantime,  if  not  otherwise  disposed 
of,  remains  in  the  settler  or  grantor  till  the  contingency  haj^pfcns.  This 
point  has  been  already  considered  to  some  extent,  under  the  head  of 
Uses  and  Trusts.{Z) 

2.  A  feoffment  was  made  to  the  use  of  the  feoffor  for  life;  afterwards, 
of  such  tenants  to  whom  he  should  demise  any  part  of  the  land  for 


(1)  Per  Lord  King,  Manscll  v.  itansell,  1 
P.  Wms.  678;   2  Abr.  Eq.  747. 

(2)  Garth  v.  Cotton,  Dick.  183. 


(3)  2  Cruise,  385;  Sir  Edward  Clere's  case, 
6  Rep.  18  a. 


554  REMAINDER— DOCTRINE  [CHAP.  XLIX. 

years  or  for  life ;  afterwards  to  the  use  of  the  performance  of  his  will, 
and  of  the  devisees  of  any  estate  in  the  land ;  after  such  performance, 
to  the  use  of  successive  tenants  in  tail;  and  lastly,  to  the  use  of  him 
and  his  heirs.  Held,  nothing  vested  till  the  death  of  the  feoffor,  be- 
cause he  had  power  to  devise  even  in  fee.(l) 

3.  Feoffment  in  fee,  to  the  use  of  A  in  tail,  remainder  in  fee  to  the 
right  heirs  of  B,  who  is  living.  The  fee-simple  is  neither  in  abeyance 
nor  in  the  feoffee ;  but  the  use  in  it  results  to  the  feoffor,  and  remains 
in  him  till  the  death  of  B.(2) 

4.  So,  where  a  contingent  remainder  is  devised^  the  fee  descends  to 
the  heir ;  and  even  though  a  precedent  estate  for  life  is  given  to  him, 
he  takes  such  estate  and  the  fee  distinctly,  in  relation  to  the  contingent 
remainder-man,  so  that  when  the  contingency  happens,  the  heir's  estate 
opens  to  let  in  the  remainder.(3) 

5.  So,  where  a  contingent  remainder  in  fee  is  devised  to  the  heirs 
of  the  testator,  preceded  by  other  contingent  remainders,  one  of  which 
is  in  fee,  the  heirs  take  the  inheritance  by  descent. 

6.  A  testator  devised  to  his  wife  for  life,  if  she  should  have  a  son, 
and  call  it  by  his  name ;  then  he  gave  the  inheritance  to  such  son ;  and, 
if  he  died  under  twenty-one,  then  to  his  own  heirs.  The  heir  of  the 
testator  conveyed  in  fee  to  the  testator's  widow.  Held,  as  the  fee  was 
not  in  abeyance,  but  descended  to  the  heir,  the  contingent  remainder 
to  the  son  was  hereby  destroyed.(4) 

7.  The  uoctrine  above  stated,  however,  has  been  denied  in  some 
cases.  Thus,  Sir  J.  Jekyll  remarked,  that  though,  in  case  of  a  devise 
for  life,  remainder  to  the  heirs  of  one  still  living,  the  remainder  in  fee  is 
in  abeyance,  yet  there  is  a  2J055iii7//^  left  in  the  heir.  That  this  was 
plain  even  in  case  of  a  grant,  where  a  possibility  is  left  in  the  grantor, 
entitling  him  to  enter  for  a  forfeiture  b}''  the  particular  tenant,  which 
terminates  his  estate  as  much  as  his  death  ;  and  that  it  was  absurd  that 
a  tenant  for  life  should  have  power  by  an  unlawful  act,  in  destroying 
the  contingent  remainder,  himself  to  acquire  the  fee.  It  was  like  the 
possibility  that  was  upon  a  grant  at  common  law  to  a  man  and  the 
heirs  of  his  body  ;  for  there,  though  the  grantor  had  no  reversion,  he 
might  enter  upon  failure  of  issue.(5) 

8.  The  decision  of  Sir  J.  Jekyll,  in  the  case  referred  to,  was  reversed 
on  appeal  by  Lord  Parker.  He  remarked,  that  the  only  possible 
ground  for  treating  the  fee  as  in  abeyance,  or  "  in  gremio  legis,'^  was  the 
preservation  of  the  contingent  remainder;  whereas  the  effect  of  this 
principle  was,  not  to  preserve,  but  to  destroy  it,  by  enabling  the  parti- 
cular tenant  to  make  a  wrongful  conveyance,  which  would  defeat  the 
remainder,  if  contingent. 

9.  In  another  case,  however,  Lord  Talbot  seemed  to  recognize  the 
principle,  that  the  fee  is  in  abeyance,  where  a  contingent  remainder  is 
limited  by  devise.  The  question  having  arisen,  whether  two  persons, 
to  whom  an  estate  was  devised,  and  to  the  heirs  of  the  survivor^  in  trust 
to  sell,  could  make  a  good  title,  the  remainder  in  fee  being  contingent; 
it  was  proposed  that  the  devisor's  heir  at  law  should  join  in  the  deed. 
But  Lord  Talbot  remarked,  that  this  would  be  of  no  avail,  except  as 

(1)  Leonard,  &c.,  10  Rep.  18.  i      (4)  Purefoy  v.  Rogers,  2  Saun.  3S0;  Carter 

(2)  Davis  V.  Speed,  Carth.  262.  v.  Barnardiston,  1  P.  Wins.  511. 

(3)  2  Cruise,  386;  Fearne,  525.  ^      (5)  Carter  v.  Barnardiston,  1  P.  Wms.  511. 


CHAP.  XLIX.]  OP  ABEYANCE,  ETC.  555 

suppl  vin,ii-  a  want  of  probate  of  the  will,  because  the  fee  tvas  in  aheyaxce.iV) 
But  Mr.  Fearne  attaches  little  wei<-lit  to  this  incidental  opinion,  and 
thinks  the  contrary  doctrine  is  now  iiruily  established  by  a  series  of 
cases.  (2) 

10.  Where  a  contingent  remainder  in  fee  is  limited  neither  by  devise 
nor  by  way  of  use,  but  by  common  law  convei/auce,  the  opinion  has  pre- 
vailed, that  althouiih  the  fee  does  not  vesi  in  any  grantee'yet  it  passes 
out  of  the  g-rantor,  leaving  him  no  estate  whatever.  It  has  been  some- 
times held,  however,  that  although  the  grantor  retains  no  estate,  yet 
there  remains  in  him  a  j)Ossihilitij  of  entry,  by  which,  upon  a  forfeiture 
by  the  jiarticular  tenant,  he  may  regain  his  title.  Mr.  Fearne  is  of 
ojsinion,  that  nothing  passes  out  of  tlie  grantor,  except  the  particular 
estate,  until  the  contingency  happens.  Thus,  where  a  conveyance  is 
made  to  A,  remainder  to  the  right  heirs  of  B,  and  A  dies  before  B  ; 
the  remainder  becoming  void,  the  grantor's  estate  revests  in  him.(3) 
But  Chancellor  Kent  says,(4)  that  though  the  good  sense  of  the  thing, 
and  the  weight  of  liberal  doctrine,  are  strongly  opposed  to  the  ancient 
notion  of  an  abeyance,  the  technical  rule  is,  as  at  common  law,  that 
livery  of  seizin  takes  the  reversion  or  inheritance  from  the  grantor,  and 
leaves  him  no  tangible  or  disposable  interest.  Instead  of  a  reversion, 
he  has  only  a  'potential  ownership,  subsisting  in  contemplation  of  law,  or 
a  possibility  of  reverter.  Mr.  Preston(5)  and  Mr.  Cornish(6)  also  are  of 
opinion,  that  the  common  law  rule  is  still  in  force,  and  the  latter  re- 
marks, that  it  was  never  shaken  or  attacked,  until  Mr.  Fearne  brought 
against  it  the  weight  of  his  eloquence  and  talents. 

11.  Chancellor  Kent  expresses  the  opinion, (7)  that  as  conveyances 
in  this  country  are  almost  universally  by  way  of  use,  the  question  as  to 
the  abeyance  of  the  fee  will  rarely  occur;  in  other  words,  they  are  sub- 
ject to  the  same  rule,  already  stated  as  applicable  in  England  to  those 
conveyances,  which  are  nominally  or  ostensibly  made  to  uses  ;  and  that 
portion  of  the  estate,  limited  as  a  contingent  remainder,  continues  in 
the  grantor  till  the  contingency  happens.  But  in  New  York,  where 
by  the  Revised  Statutes  all  conveyances  are  to  be  deemed  grants,  which 
is  a  common  law  mode  of  transfer,  Chancellor  Kent  is  of  opinion  that 
the  doctrine  of  abeyance  is  in  force.  How  far  the  latter  remark  is  ap- 
plicable in  other  States,  and  whether  conveyances  by  deed,  though 
designated  by  names  which  in  England  denote  limitations  to  uses,  such 
as  bargain  and  sale,  &c.,  are  to  be  treated  as  such  in  effect;  or  whether, 
as  is  often  expressed,  they  are  to  be  regarded  as  a  substitute  for  feoff- 
ment, and  in  most  respects  to  have  the  same  operation  with  the  latter; 
are  questions  which  may  be  considered  hereafter.(a) 


2    Prcst.    on 


(1)  Tick  V.  Kdwards,  3  P.  Wms.  372.          1 

I      (4)  4  Kent,  259. 

(2)  Fearne,  525. 

(5)  1    Prest.  on    Est.    ' 

(3)  Co.     Lit.    342   b;     1    P.    "Wms.    515; 

Abst.   103-G. 

Fearne,  526;   2  Rolle's  Abr.  418  ;  Viii.  Abr. 

(G)  Cornish,  117. 

Remauidcr.(l) 

(7)  4  Kent,  257,  and  n. 

(a)  See  Deed,  Feoffment. 


556 


REMAINDER.     ALIENATION,  ETC. 


[CHAP.  L. 


CHAPTER   L. 

REMAINDER.— ALIENATION,  ETC.,  OF  CONTINGENT  REMAINDERS. 


1.  Vested  remainders  alienable,  &c. 

2.  Contingent  remainders  said  to  bo  descen- 

dible and  devisable. 


10.  Cannot  bo  conveyed  at  law,  but  may  be 
in  equity,  and  may  pass  by  estoppel. 

15.  Transfer  to  creditors. 

16.  Geueral  remarks. 


1.  It  has  been  already  stated,  that  vested  remainders  are  for  the  most 
part  subject  to  the  same  rules  of  law  as  vested  estates  in  possession. 
Like  the  latter,  they  are  transmissible,  either  by  act  of  law  or  by  act  of 
the  remainder-man  himself  Thus,  a  vested  remainder  descends  to 
heirs,  may  be  conveyed  or  devised,  and  is  in  general  liable  to  be  taken 
by  creditors. 

2.  With  regard  to  contingent  remainders,  the  general  principle 
laid  down  by  elementary  writers  is,  that  all  contingent  estates  of 
inheritance,  where  the  person  to  take  is  certain,  are  transmissible  by 
descent,  and  devisable.  To  this  point,  so  far  as  it  relates  to  heirs,  Mr. 
Cruise  cites  the  following  cases.(l) 

3.  A  made  a  feoffment  to  the  use  of  himself  for  life;  after  the  death 
of  himself  and  his  wife,  to  the  use  of  B,  his  son,  for  life,  then  to  the 
wife  of  B,  and  her  issue  by  him  ;  remainder  over ;  remainder  to  the 
heirs  of  B.  B,  having  issue  a  daughter,  leased  for  a  long  term,  made 
a  fine  to  the  lessee  for  the  same  term,  and  died  in  the  lifetime  of  A. 
Held,  though  A  took  but  a  contingent  remainder,  yet  this  descended 
to  his  heir,  so  far  that  the  latter,  after  the  contingency  happened,  was 
bound  by  the  fine.(2)(a) 

4.  So  a  contingent  use  descends  to  heirs.  Thus,  it  is  laid  down  in 
Shelley's  case,-  that  where  A  covenants  with  B,  that,  upon  a  certain 
contingency,  he  will  stand  seized  of  certain  land  to  the  use  of  the  lat- 
ter, who  dies,  and  then  the  contingenc}^  happens;  although  B  had 
neither  a  right,  title,  use  nor  action,  but  only  a  possibility  of  an  use, 
which  could  neither  be  released  nor  discharged,  yet  his  interest 
descended  to  his  heir.(3) 

5.  But  where  the  circumstances  seem  to  make  the  existence  of  the 
contingent  remair\der-man  a  part  of  the  contingency  itself,  upon  which 
the  remainder  is  to  vest ;  his  interest  will  not  pass  to  his  heirs.(4) 

6.  'Conveyance  by  husband  and  wife  of  her  lands,  to  the  use  of  her  for 
life,  remainder  to  him  for  life,  if  they  should  have  any  issue  that 
should  so  Ions  live,  remainder  to  all  such  children  in  fee,  as  tenants 


(1)  4  Kent,  261 ;  Fearne,  459  ;  2  Prest.  on 
Abstr.  119;  2  Cruise,  296-8;  Goodtitle  v. 
Billington,  Doug.  753;  Lawrence  v.  Bayard, 
1  Paige,  76;  Varick  v.  Edwards,  1  Hoffm. 
383;  Jackson  v.  Waldron,  13  Wend.  178; 
Fortescue    v.    Sattertbwaite,    1    Ired.    570; 


Turner  v.  Patterson,  5  Dana,  295 ;  Shelby  v. 
Shelby,  6  Dana,  60;  Birstu.  Dawes,  4  Strobh. 
Equ.  37. 

(2)  Weale  v.  Lower,  Pollexfen,  54. 

(3)  Wood's  case,  1  Rep.  99  a. 

(4)  Fearne,  364. 


{a)  This  case  directly  decides,  rather  that  a  contingent  remainder  may  be  barred  as  against 
the  heir,  even  if  it  does  descend,  than  that  such  remainder  is  actually  descendible. 


ClTAP.  L.]  REiTAlNDER.     ALIENATION,  ETC.  557 

in  common  ;  if  the  wife  should  die  without  issue,  or  all  such  issue 
should  die  under  twenty-one,  then,  as  to  one  moiety,  to  the  liusbund 
in  fee.  The  husband  died  before  the  wife.  Held,  nolhinff  passed  to 
his  heirs.(l)  So  the  children  of  one  who  has  died,  and  whose  interest 
in  a  devise  was  contingent,  to  take  effect  upon  the  death  of  a  co-devisee, 
cannot  take  anything  upon  the  death  of  such  co-devisee,  occurring  alter 
the  death  of  their  ancestor.(2) 

7.  The  principle  above  stated,  both  in  regard  to  the  descent  and 
devise  of  contingent  remainders,  is  recognized  in  the  case  of  Uoo  v. 
GriffilhsX'^)  where  Lord  Alanslield  remarks,  that  in  all  contingent, 
springing  and  executory  uses,  where  the  person  who  is  to  take  is 
certain,  so  that  the  same  may  be  descendible,  they  are  also  devisable.  So, 
in  the  ease  of  Barnitz  v.  Casey.i^)  in  the  Supreme  Court  of  the  United 
States,  it  is  said  that  a  contingent  remainder  or  executory  devise 
descends  to  heirs,  but  with  the  qualification,  that  it  shall  vest  in  him 
who  is  heir  to  the  first  devisee  wlien  the  contingency  happens.(a)  So, 
in  Driver  v.  Franh,{b)  although  the  point  seems  to  be  treated  as  if  it 
were  or  had  been  doubtful,  Ch.  J.  Gibbs  says,  "it  cannot  be  disputed, 
that  generally  a  contingent  remainder  is  transmissible." 

8.  A  devised  in  trust  for  his  son  B,  and,  if  he  should  die  without 
issue,  under  age,  then  that  all  his  estate  should  go  to  C,  his  heirs  and 
assigns.  C  afterwards  devised  all  his  estates  in  possession,  remainder 
or  reversion,  and  died,  living  B,  who  subsequently  died  under  twenty- 
one,  and  without  issue.  Lord  Chancellor  Northington  said,  "  I  have 
never  had  any  doubt,  since  I  was  twenty-five  years  old,  that  these 
contingent  interests  are  devisable,  notwithstanding  some  old  authori- 
ties to  the  contrary ."(6)(6) 

9.  A  covenanted  with  B,  that  his  son  should  inarrv  the  daughter  of 
B,  and,  if  not,  that  A  and  his  heirs  would  stand  seiz-jd  of  certain  land 
to  the  use  of  B  and  his  heirs,  until  £100  should  be  paid.  B  died,  and 
the  marriage  never  took  place.  Held,  the  heir  of  B  should  have  the 
land. (7) 

10.  In  England,  though  a  contingent  remainder  will  not  pass  by 
a  legal  conveyance,  yet  it  may  pass  by  esto{)pel,(c)  fine  or  recover}',  so 
as  to  bind  the  heir,  when  the  contingency  happens,  after  the  death 
of  the  original  remainder-man.  And  such  remainder  is  assignable  in 
equity.(8)(c/) 

IL  Til  us,  in  M'cak  v.  Lower,  {siqjra,  sec.  3,)  it  being  decided,  that 
the  remainder,  whether  vested  or  contingent,  came  to  the  heir  of  A 
by  descent,  not  as  a  purchaser ;  it  was  further  held,  that  as  the  heir 
would  have  been  bound   by  the  lease  by  estoppel,  upon  the  vesting  of 


(1)  Moorhonse  v.  Wninhouse,  1  BI.  R.  633. 

(2)  Di4,.ie  V.  Lowen,  2  B.  Mon.  616. 

(3)  1  Black.  U.  005. 

(4)  7  <'rai.c'li,  469. 
(6)  6  Price,  53. 


(6)  Moor  V.  Hawkins,  1  H.  Bl.  33-4. 

(7)  Rector  of  Cheddington'a  case,  1   I?ep. 
155  b. 

(8)  2  Cruise,  393  ;  Doo  v.  Martyn,  S  Barn. 
&  Cr.  516. 


(a)  See  Reversion,  Descmi 

(6)  A  testator  devLsed  all  the  lieredita mentis  to  which  he  mip:ht  bo  entitled  at  his  death, 
and  died,  having  a  contingent  interest  in  fee,  hy  shitting  use  and  a  limitation  in  default  of 
his  brutiier'd  issue.  Held,  tliis  interest  did  not  pass,  lionywood  i;.  Hony wood,  2  Y.  &  Coll. 
Cha.  471. 

(c)  A  feme  covnt,  not  being  bound  by  estoppel,  cannot  convey  such  remainder.  Den  v. 
Demarest.  I  N.  J.  525. 

^    (</)  III  Michigan,  (Rev.  St.  266,)  any  contingent  estate  which  would  pass  by  descent,  is  also 
subject  to  devise  and  conveyance. 


558  REMAINDER.     ALIENATION,  ETC.  [CHAP.  L. 

bis  estate,  supposing  it  to  have  been  contingent  wben  the  lease  was 
made,  so  bis  beir  was  bound  in  bke  manner. 

12.  Devise  to  A  for  life,  remainder  to  his  first  and  otber  sons  in  tail 
A,  and  B  bis  eldest  son,  joined  in  suffering  a  recovery,  and  declaring 
uses  of  tbe  estate.  Altervvards  B  died,  and  C,  a  second  son,  undertook 
to  create  a  cbarge  upon  tbe  land,  by  a  deed  reciting  bis  contingent  and 
reversionary  estate  therein.  A  died,  having  devised  to  B  a  life  estate 
in  the  land.  Held,  although  at  tbe  time  of  attempting  to  charge  the 
land,  C  had  no  interest  in  it,  yet  his  interest,  subsequently  acquired 
under  the  will,  was  bound  by  bis  deed,  by  estoppel. (1) 

13.  Upon  a  marriage  settlement,  a  rent  was  created  to  tbe  use  and 
intent,  that  the  heirs  of  tbe  body  of  the  wife  and  their  heirs  should 
receive  such  rent ;  and  subject  thereto,  the  land  was  limited  to  the 
husband  and  his  heirs.  There  were  two  sons  of  the  marriage,  who, 
living  the  father  and  mother,  conveyed  tbe  rent  by  deed.  The  estate 
was  the  father's.  Held,  tbe  sons  had  not,  at  the  time  of  selling,  an 
actual  possibility  ;  the  rent  might  never  arise,  or,  if  it  did,  the  sons 
might  not  be  heirs  of  the  mother's  body  at  her  death.  Nothing,  there- 
fore, passed  by  the  deed.     A  fine  would  have  operated  by  estoppel. (2) 

14.  In  a  late  case,(3)  it  is  said,  by  Bayley,  J.,  that  a  fine  by  a  con- 
tingent remainder-man  passes  nothing,  but  leaves  the  right  as  it  found 
it ;  that  it  is,  therefore,  no  bar  when  the  contingency  happens,  in  the 
mouth  of  a  stranger,  against  a  claim  in  tbe  name  of  such  remainder-man ; 
that  it  operates  by  estoppel,  and  by  estoppel  only,  and  that  parties  or 
privies  may  avail  themselves  of  that  estoppel,  but  parties  or  privies 
only.  But  the  same  learned  judge,  in  a  still  later  case,(4)  qualifies  his 
former  opinion  by  saying,  that  such  fine,  besides  operating  by  estoppel, 
has  an  ulterior  operation  wben  the  contingency  happens ;  that  the 
estate,  which  then  becomes  vested,  feeds  the  estoppel,  and  tbe  fine 
operates  upon  it  as  though  it  bad  been  vested  when  tbe  fine  was 
levied,  (a) 

15.  In  England,  a  contingent  remainder  may  be  validly  transferred 
to  creditors.  It  may  still  be  defeated  by  the  particular  tenant ;  but, 
if  the  original  remainder-man  afterwards  regains  an  interest  in  the  estate 
by  the  act  of  such  tenant,  the  Court  of  Chancery  will  subject  it  to  tbe 
claim  of  tbe  creditors.(o) 

16.  The  concurrent  opinions  of  elementary  writers,  and  the  cases  to 
which  they  refer,  seem  to  settle  tbe  principle,  that  contingent  remain- 
ders are  both  descendible  and  devisable.  It  will  be  perceived,  how- 
ever, that  the  establishment  of  this  doctrine  at  once  destroys  a  very 
important,  perhaps  the  most  important,  distinction  between  vested  and 
contingent  remainders.  There  is  but  one  other  point  of  view,  in  which 
the  question  would  be  likely  to  be  raised  for  judicial  decision,  whether 
a  remainder  was  vested  or  contingent ;  and  that  is,  tbe  power  of  a  pre- 

(1)  Bensley  v.  Burdon,  2  Sim.  &Stu.  519.     I      {?,)  Doe  v.  Martyn,  8  Barn.  &  Cr.  527. 

(2)  Whitfield  v.Faussett,  1  Ves.  391.    (But        (4)  Doe  v.  Oliver,  10  lb.  187. 
see  Wright  v.  Wright,  1  Ves.  411.)  '      (5)  Noel  v.  Bewley,  3  Sim.  103. 

(o)  But  where  one  to  whom  an  estate  was  limited,  by  way  of  executory  devise,  having  a 
vested  right  to  a  share  of  the  same  property,  conveyed  all  her  "  right,  title  and  claim  to  the 
land,"  with  a  covenant  against  all  claims  arising  under  her,  before  the  contingency  occurred, 
and  the  executory  devise  afterwards  became  vested  ;  held,  she  was  not  estopped  by  her 
covenant  from  claiming  the  laud  conveyed  by  it.     Hall  v.  Chaffee,  14  N.  H.  215. 


CEAP.  L.]  REMAINDER.     ALIENATION,  ETC.  559 

ceding  tenant  to  destroy,  tljc  latter  and  not  tlic  former.  Afany  of  tlic 
numerous  cases  upon  this  suV)jt'ct  have  turned  upon  this  latter  question  ; 
but  I  think  it  will  be  found,  on  examination,  that  many  others  have 
turned  upon  the  point,  whether  a  remainder  had  or  had  not  passed,  or 
might  or  might  not  pass,  to  the  representatives  of  the  remainder-man 
after  his  death  ;  and  that  this  qnestion  has  been  treatcxl,  as  involving, 
or  involved  in,  the  further  intiuirv,  whether  llie  remaiiKl(,'r  was  vested 
or  contingent.  In  other  words,  it  has  been  taken  for  (jrantal^  that  if  a 
remainder  is  transmissible,  it  is,  of  course,  vested  ;  if  not  transmis.^ible, 
it  is,  of  course,  contingent.  One  of  the  cases  alread}'  cited,  viz.  Barnitz 
V.  Gt(sey^{V)  although  recognizing  the  doctrine,  that  a  contingent  remain- 
der descends,  yet,  by  stating  in  ivliat manner  it  descends,  seems  to  nega- 
tive or  greatly  qualify  the  general  proposition  ;  for  sucli  remainder 
passes,  not  to  the  heir  of  the  contingent  remainder-man  at  his  death,  but 
to  the  person  who  is  heir  to  him  at  the  time  the  contingency  hapj^ens.(a) 
This  remark,  of  course,  can  have  no  possible  applicability  to  a  vested 
estate  or  a  vested  remainder,  which,  upon  the  death  of  the  owner  in 
fee,  must  pass  at  once  to  his  then  heirs.  So,  in  the  leading  case  already 
cited,  of  Smith  v.  ParJchurst,  Chief  Justice  Willes,  in  his  elaborate  opin- 
ion delivered  to  the  House  of  Lords,  urges  as  one  of  the  most  eonvin- 
cing  reasons  for  regarding  the  remainder,  limited  to  trustees  and  their 
heirs,  as  vested  and  not  contingent;  that,  upon  the  latter  construction, 
it  could  not  descend  to  heirs,  though  they  were  expressly  namcd.(6) 
So,  in  the  case  of  Doe  v.  Provoost^i^l)  the  decision,  that  the  remainder 
actually  vested  in  the  children  of  A,  during  her  life,  was  founded  in 
part  at  least  upon  the  consideration,  that  otherwise  it  could  not  descend 
to  grandchildren,  and  thus  the  testator's  intentions  in  their  favor  would 
be  defeated.  The  same  ground  of  decisi(m  is  recognized  in  the  case 
of  Wager  v.  11  a^er.(o)  So  in  Jackson  v.  Durland,  it  is  said,  "  B  had  a 
vested  interest  in  possession  on  the  death  of  the  widow.  B  was  the 
object  of  the  testator's  bequest ;  and  he  never  meant  that  the  remainder 
should  be  contingent  until  he  came  of  age,  so  that,  i(  he  married  in  the 
meantime  and  died,  his  children  coidd  not  inherit.^^  And  in  Doe  v. 
Perryn,{-i:)  Buller,  J.,  assigns  as  the  strong  reason  for  construing  a  re- 
mainder to  be  vested,  if  [»ossible,  that  otherwise,  where  it  is  limited  to 
children,  it  would  not  pass  after  their  death  to  grandchildren.  The 
same  ground  is  recognized  in  Rjrastoris  case,  and  in  several  others, 
which  it  is  needless  to  enumerate.(c)  I  trust  that  those  cited  will  excuse 
me  from  the  charge  of  presumption,  when  I  express  my  surprise,  that 
the  transmissibilit//  of  contingent  reuiainders  by  descent  (to  say  nothing 
of  devises)  has  been  staled  by  so  many  distinguished  writers,  as  a  well 
settled  and  clear  point.     Nor  does  it  seem  to  me,  that  the  conflict  of 

(1)  Supra,  a.  7.  I      (3)  Supra,  ch.  42,  s.  53. 

(2)  Supra,  ch.  42,  &  51.  I       U)  3  T.  R.  494-5. 

(a)  Thus,  a  life  estate  ia  limited  lo  A,  with  a  contingent  remainder  to  B  and  hia  lieira ; 
B  dies,  living  A,  and  leaves  two  nepiiews,  C  and  D,  iiia  heirs  at  law.  C  dies,  kaving  child- 
ren, and  then  A.    D,  upon  A's  death,  takes  tlie  whole  estate,  and  O's  cliildren  nothing. 

(6)  The  manner  of  the  Chief  Justice's  argument  upon  this  point  is  contident,  sarcastic, 
almost  scornful.  "  WUl  any  one  say  that  anything  can  descend  to  liie  heir,  that  did  not 
vest  in  the  ancestor?  i^o  that,  if  nothing  vested  in  the  trustees,  tlie  limitation  to  them  and 
their  heirs  is  nonsensical." 

(c)  Being  a  vested  remainder,  it  descended  by  foroo  of  the  statute  to  his  father,  as  his  heir, 
and  he  is  now  entitled  to  that  share.     Ballard  v.  Ballard,  18  Pick.  44. 


m 


REMAINDERS  IN  NEW  YORK. 


[CHAP.  LI. 


authorities  is  fully  reconciled,  by  the  qualification  ordinaril}^  annexed 
to  the  statement  of  this  rule,  viz.,  that  such  remainders  descend  ^^  ivhere 
the  j^erson  to  take  is  certain^  It  would  seem  a  self-evident  proposition, 
that  where  the  person  to  take  is  uncertain^  a  remainder  cannot  descend. 
Thus,  where  a  conveyance  is  made  to  A  for  life,  remainder  to  the  right 
heirs  of  B,  this  is  a  contingent  remainder  by  reason  oi  the  uncertainty  of 
the  person.  In  other  W(Jrds,  there  is  no  person,  answering  to  the  descrip- 
tion of  "  heirs  of  B."  ^^  Nemo  est  hceres  viventisy  Unless,  therefore,  a 
kind  of  personalty  is  given  to  nemo,  it  is  idle  to  say  that  such  remain- 
der cannot  descend,  since  the  law  recognizes  no  one  who  can  stand  in 
the  capacity  of  ancestor.  Still,  some  of  the  cases  may  perhaps  be  ex- 
plained by  the  circumstance,  that,  although  the  remainder  was  contin- 
gent, yet  the  person  who  should  take  was  ascertained  ;  or,  in  the  lan- 
guage of  Wilde,  J.,  in  the  case  of  Glapp  v.  Stoughton,{l)  that  there  was 
''a  vested  right  subject  to  a  contingency,  which  was  transmissible  to  heirs, 
and  became  vested  in  possession  in  them  on  the  forfeiture  of  the  estate" 
by  the  prior  tenants.  This  seems  to  be  substantially  a  repetition  of 
Chief  Justice  Willes'  doctrine  already  referred  to,  of  a  distinction  be- 
tween contingent  remainders  which  do  vest,  and  contingent  remainders 
which  do  not  vest.(a) 


CHAPTER    LI. 


REMAINDERS    IN    NEW    YORK.    , 


1.  Expectancies.     Remainders    vested  and 
contingent. 

6.  Fee  upon  a  fee. 

7.  Remainder  after  estate  tail. 

8-18.  Remainder  after  estate  for  life  or  for 
years. 


13.  Remainder  not  barred  by  destruction  ot 

prior  estate. 

14.  Not  void  for  improbability. 

15.  Remainder  to  heirs. 

16.  Contingency  may  abridge  prior  estate. 

17.  Limited  application  of  the  statute. 


1.  In  New  York,  expectancies  are  divided  into  future  estates,  or  those 
which  are  to  commence  at  a  future  day,  and  reversions.  A  future  es- 
tate may  be  limited,  either  without  any  precedent  estate,  or  after  the 
termination  of  such  estate.  In  the  latter  case,  it  may  be  called  a  re- 
mainder.{2) 

2.  A  remainder  is  defined  to  be  "  an  estate  limited  to  commence 
in  possession  at  a  future  day,  ont  he  determination,  by  lapse  of  time,  or 
otherwise,  of  a  precedent  estate  created  at  the  same  time."(8) 

3.  A  vested  remainder,  is  when  there  is  a  person  in  being,  who  would 
have  an  immediate  right  to  the  possession  of  the  lands,  upon  the  ceas- 
ing of  the  intermediate  or  precedent  estate.     Oi-  it  is  where  tlie  person 


(1)  10  Pick.  468.     {Supra,  ch.  42,  sec.  48.)  | 

(2)  1  N.  Y.  Rev.  St.  723.  I 


(3)  1  N.  Y.  Rev.  St.  723. 


(a)  In  Maine,  (Rev.  St.  372,)  any  contingent  remainder,  which  would  pass  by  descent, 
may  also  be  conveyed  or  devised.  In  Massachusetts,  by  a  recent  decision,  it  lias  been 
settled  that  contingent  interests  are  assignable.     Winslow  v.  Goodwin,  7  Met.  363. 

In  New  Jersey,  they  are  made  subject  to  conveyance  and  descent,  but  not  to  execution. 
N.  J.  Sts.  1851,  282. 


CHAP.  LI.]  RKMAIXDERS  IN  NKW  YORK.  501 

is  ill  being  and  ascertained,  who  will,  if  lie  lives,  have  an  aksoluto  and 
immediate  right  to  possession,  njjon  the  ceasing  or  liiilure  ot"  all  prece- 
dent, estates,  provided  the  estate  limited  in  renunnder  continues;  or, 
where  a  remainder  cannot  be  defeated  by  third  jiersons,  or  contingent 
events,  or  failure  of  the  condition  precedent,  if  the  remainder-man 
lives  and  the  estate  limited  to  him  continues,  till  all  the  precedent  es- 
tates are  determined. 

4.  A  remaiiuler  is  contingent^  whilst  the  person  to  whom,  or  the  event 
upon  which,  it  is  limited  to  take  cli'ect,  remains  uncertain.  Or  it  is, 
where  there  are  other  uncertainties,  besides  the  remainder-man's  living 
and  the  continuance  of  his  estate,  though  he  be  living  and  ascertained  at 
the  time.  But  a  remainder  is  not  contingent,  where  it  is  limited  to  a 
whole  class  in  being,  though  accompanied  with  a  power  of  appointment 
to  a  part  of  such  class ;  until  such  appointment  is  made,  it  vests  in  the 
whole.(l) 

5.  xV  remainder  is  contingent,  wdiere,  before  it  can  take  effect,  trus- 
tees are  to  make  an  appointment  with  reference  to  moral  character,  at 
the  time  of  vesting  in  possession. (2) 

6.  A  contingent  remainder  in  fee  may  be  limited  on  a  prior  remain- 
der in  fee,  to  take  effect  in  case  the  first  remainder-man  dies  under  age, 
or  upon  any  other  contingency  by  which  his  estate  may  terminate  be- 
fore he  comes  of  age.  So,  a  fee  may  be  limited  upon  a  fee,  upon  a 
contingency,  which  must  happen,  if  at  all,  within  the  period  of  two 
lives  in  being  at  the  creation  of  the  estate.(3) 

7.  Remainders  may  be  validly  limited  upon  every  estate  which,  un- 
der the  English  law,  would  be  adjudged  an  estate  tail.  These  take 
etfe.-t  as  conditional  limitations  upon  a  fee,  and  vest  in  possession  on 
the  death  of  the  prior  tenant,  leaving  no  issue.(4) 

8.  No  remainder,  except  a  fee,  can  be  created  upon  an  estate  for  the 
life  of  any  other  person  or  persons,  than  the  gmntee  or  devisee  of  such 
estate  ;  nor  can  a  remainder  be  created  upon  such  estate  in  a  term  for 
year.s,  unless  it  be  for  the  whole  residue  of  such  term  ;  nor  can  a  re- 
mainder be  made  to  depend  upon  more  than  two  successive  lives  in 
being;  and  if  more  lives  be  added,  the  remainder  takes  effect  upon  the 
death  of  the  first  two  persons  named. (5) 

9.  A  contingent  remainder  cannot  be  created  on  a  term  for  years, 
unless  the  nature  of  the  contingency  is  such,  that  the  remainder  must 
vest  in  interest  during  not  more  than  two  lives  in  being  at  the  creation 
of  the  remainder,  or  upon  the  termination  thereof  (6) 

10.  No  estate  for  life  can  be  limited  as  a  remainder  on  an  estate  for 
years,  except  to  a  person  in  being  at  the  creation  of  such  estate.(7) 

11.  A  freehold  estate,  as  well  as  a  chattel  real,  (to  which  these  regu- 
lations equally  appl\ ,)  may  be  created  to  commence  infuturo  ;  and  a  life 
estate  may  be  created  in  a  term  of  years,  and  a  remainder  limited 
thereon  :  and  a  freehold  or  other  remainder,  either  contingent  or  vested, 
may  be  limited  upon  an  estate  for  years.(8) 

12.  Wiien  a  remainder  on  a  life  estate  or  a  term  for  years  is  not 
limited  on  a  contingency  defeating  or  avoiding  the  prior  estate,  it  shall 


(1)  Ibid.  ;  Uawley  v.  Jamea,  6  Paige,  318. 

(2)  Ibid. 

(3)  1  R.  St.  723-4. 

(4)  lb.  722. 

Vol.  I.  36 


(5)  lb.  724. 

(G)  lb. 

(7)  lb. 

(8)  lb. 


562  REMAINDERS  IN  NEW  YORK.  [CHAP.  LI. 

be  construed  as  intended  to  take  effect  only  on  the  death  of  the  first 
taker,  or  the  natural  expiration  of  the  term.(l) 

13.  No  expectant  estate  shall  be  defeated  or  barred  by  any  alienation 
or  other  act  of  the  prior  tenant,  or  by  any  destruction  of  the  prior  estate 
by  disseizin,  forfeiture,  surrender,  merger  or  otherwise,  unless  in  some 
mode  authorized  by  the  party  who  created  the  estate.(2) 

14.  No  future  estate,  otherwise  valid,  shall  be  void,  on  the  ground  of 
the  probability  or  improbability  of  the  contingency  on  which  it  is  limit- 
ed to  take  effect. (3) 

15.  Where  a  remainder  is  limited  to  the  heirs  or  heirs  of  the  body  of 
a  person  to  whom  a  life  estate  is  given,  the  persons  who,  on  the  termi- 
nation of  the  life  estate,  are  the  heirs  of  the  tenant  for  life,  take  as  pur- 
chasers. (4) 

16.  A  remainder  may  be  limited  upon  a  contingency,  which  operates 
to  abridge  or  defeat  the  prior  estate;  and  such  remainder  shall  be  con- 
strued as  a  conditional  limitation. (5) 

19.  The  provisions  above-named  do  not  affect  vested  rights,  or  the 
construction  of  deeds  or  instruments,  which  took  effect  prior  to  Januarv 
1,  1830.(6) 

18.  Upon  a  devise  to  A  for  fift}^  years,  as  an  absolute  term,  remain- 
der to  B  for  life  if  he  should  marrj^  C,  remainder  to  the  children  of 
such  marriage;  the  remainder  to  B  is  contingent,  but  cannot  vest  after 
his  death,  and  fails  by  that  event  if  it  happen  within  the  term.  The 
ultimate  remainder  must  vest,  if  ever,  within  the  period  of  one  life  in 
being  at  the  testator's  death.  The  first  child  would,  upon  its  birth,  take 
a  vested  interest  in  the  ultimate  remainder  in  fee,  subject  to  open  and 
let  in  after-born  children. (7)(a) 

(5)  lb.  125. 

tf)  1  N.  Y.  Rev.  St.  750. 
(7)  Marsellis   v.  Thalkimer,   2   Paige,  35 ; 
Hawley  v.  James,  4  Kent,  251,  n. 


(1)  Rev.  St.  725. 

(2)  lb. 

(3)  lb.  724 

(4)  lb.  724. 


(a)  New  York  and  Wisconsin  are  almost  alone  in  detailed  legislation  upon  the  sulDJect  of 
remainders.  In  Mississippi  and  Michigan,  acts  provide  tliat  no  remainder  shall  be  affected 
by  an  alienation,  or  union  with  the  inheritance,  of  tiie  particular  estate.  Missi.  Rev.  C.  458  ; 
Mich.  Rev.  St.  258.  In  Maine,  by  anv  conveyance,  disseizin.  &c.  Me.  Rev.  Sts.  372.  See 
Mass.  Rev.  St.  405. 

In  Indiana,  a  remainder^may  be  validly  limited  upon  a  contingency,  which  may  shorten 
the  preceding  particular  estate.  It  cannot  be  limited  for  more  than  a  life  or  lives  in  being; 
except  on  the  contingency  oftlie  tirst  remainder-man's  dying  underage.     Ind.  Rev.  Sis.  201. 

In  Wisconsin,  successive  life  estates  shall  not  be  limited  except  to  lives  in  being.  Wis. 
Eev.  Sts.  ch.  5G. 

A  remainder,  limited  on  the  life  of  a  person  not  the  grantee.  &c.,  must  be  in  fee. 

A  remainder,  limited  upon  an  estate  for  the  life  of  a  third  person,  shall  be  for  the  residue 
of  the  term. 

A  remainder  upon  more  than  two  lives,  not  the  grantees,  &c.,  shall  take  effect  on  the  death 
of  two. 

A  contingent  remainder  in  a  terra  of  years,  shall  not  be  limited  in  more  than  two  lives. 

An  e.-^tate  shall  not  be  limited  as  a  remainder,  on  a  term  of  years,  except  to  one  in  being 
at  the  time. 

A  contingency  of  death,  ''without  heirs,"  "issue,"  &c.,  shall  be  understood  as  referring 
to  heirs,  &c.,  living  at  the  death  of  the  ancestor. 

Chattels  real  are  included  in  the  above  provisions. 

A  freehold  may  be  created  to  begin  infuturo. 

Tliere  may  be  alternative  future  estates. 

Posthumous  children  shall  take  in  case  of  a  limitation  to  heirs,  to  take  effect  in  future. 

No  expectant  estate  shall  be  defeated  by  a  conveyance. 

A  remainder  shall  not  be  defeated  by  the  determination  of  the  precedent  estate,  before  the 
happening  of  the  contingency  in  which  the  remainder  is  to  vest. 

Expectant  estates  are  alienable,  and  subject  to  inheritance. 

Expectant  estates  may  commence  infuturo,  without  the  support  of  a  particular  estate. 


CHAP.  Lir.]  REVERSION.  56S 

CIIAPTEU    LFl. 

REVERSION. 

1.  Definition  and  principle  of  the  estate,    i  9.  Subject  to  saino  rules  with  estates  in 

3.  An  incorporeal  hereditament.  possession. 

4.  After  conditional  fee,  &a                         I  10.  Actions  by  reversioner  for  injuries  to 

5.  After  base  foe.                                          I  the  land. 

6.  Alter  estate  for  years.  21.  Rights  of  reveraionor  in  case  of  adverse 
1.  May  belong  to  a  particular  tenant,  who  possession. 

underlets.  j      27.  Reversion,  how  far  liable  for  debts. 

8.  Created  by  act  of  law.  i      3-i.  Transfer  of  reversion — when  set  aside. 

I      45.  Miscellaneous  prorisiona 

1.  A  REVERSION  is  either  tlie  residue  of  an  estate  left  in  a  grantor,  to 
commence  in  possession  after  the  termination  of  some  particular  estate 
wliicli  he  has  conveyed;  or  the  residue  of  an  estate  which  descends  to 
heirs,  subject  to  some  particular  devise,  or  some  temporary  interest 
created  by  act  of  law.  Thus,  if  the  owner  in  fee  grant  an  estate  for  life, 
the  reversion  of  the  fee  is,  without  anj-  special  reservation,  vested  in  him 
by  act  of  law.  So,  if  an  owner  in  fee  devises  an  estate  to  one  for  life, 
or  if  the  owner's  widow  is  endowed  from  his  land,  his  heirs  are  owners 
of  the  reversion.(a) 

2.  This  estate  is  founded  upon  the  principle,  that  where  the  owner  of 
land  creates  a  limited  or  particular  estate  therein,  he  retains  all  the  in- 
terest in  the  land,  which  he  has  not  expressly  parted  with.  Thus,  if 
one  convey  to  A,  remainder  to  B,  with  any  number  of  remainders  over, 
less  than  a  fee  ;  he  retains  tlie  fee  himself,  as  a  reversion. 

3.  A  reversion  is  said  to  be  an  incorporeal  hereditament,  and  there- 
fore, in  England,  may  be  conveyed  by  grant,  without  livery  of  seizin. 
The  more  usual  method  of  transfer  is  a  lease  and  release,  or  bargain  and 
sale.(l) 

4.  At  common  law,  where  a  man  conveyed  a  conditional  fee,  no  re- 
version or  actual  estate  remained  in  him,  but  the  grantee  took  the  entire 
estate,  leaving  only  s.  possibility  of  reverter  in  the  grantor,  upon  failure  of 
the  condition.  But  it  is  now  settled,  though  once  doubted,  that  an  es- 
tate tail  is  a  particular  estate,  carved  out  of  the  fee-simple,  and  leaves  a 
reversion  in  the  grantor.(2) 

5.  No  reversion  remains  upon  a  hase  or  qualified  fee ;  because  no 
valid  remainder  can  be  limited  upon  such  estate. 

6.  It  is  said,  that  where  the  owner  in  fee  makes  a  lease  for  years,  he 
has  no  reversion  till  the  lessee  enters,  upon  the  ground  that  before 
entry  the  lessee  does  not  complete  his  estate.  But  when  an  estate  for 
years  is  created  by  any  conveyance  deriving  eflect  from  the  statute  of 
uses,  as  the  lessee  immediately  has  the  legal  possession,  a  reversion  im- 

(1)  4  Kent,  354  and  n.  I      (2)  Willion   v.   Berkley,    Plow.    243;  Lit. 

sees,  18,  19. 


(a)  See  Hitchman  v;  Walton,  4  Mees.  k  W.  409.  By  tiic  En-lish  law,  the  two  incidents  to 
a  reversion  are  fealty  and  rent.  The  former  is  unknown  in  the  United  States.  The  latter, 
though  incident  to  the  reversion,  is  not  inseparably  incident,  but  may  be  excepted  by  the  re- 
versioner from  a  transfer  of  his  estate. 


o6i 


REVERSION. 


[CHAP.  LIL 


mediately  vests  in  the  lessor.    This  subject  has  been  already  considered 
under  the  title  of  i:^i';;ate /or  Years.    (Page  r77.)(l) 

7.  Where  one  having  a  limited  or  particular  interest  in  land,  conveys 
to  another  a  smaller  interest  than  his  own,  he  thereby  acquires  a  rever- 
sion to  himself.  Thus,  where  tenant  in  tail  leases  for  lite,  or  a  tenant 
for  ninety-nine  years,  for  this  period,  less  one  day,  he  becomes  a  rever- 
sioner. So,  in  England,  where  land  is  taken  by  the  legal  process  of 
elegit,  tStc,  to  be  held  by  the  creditor  till  his  debt  is  satisfied,  the  debtor 
has  a  reversion. (2) 

8.  A  reversion  is  never  created  by  deed  or  writing,  or  by  act  of  party, 
but  always  arises  from  construction  of  law.  And  where  an  estate  is 
expressly  limited,  though  under  the  name  of  remainder,  in  the  same 
way  in  which  it  would  pass  by  law  as  a  reversion  ;  it  will  be  construed 
as  the  latter,  not  the  former  interest.  Thus,  if  one  conveys  for  life  or 
in  tail,  remainder  to  his  oion  right  heirs ;  he  still  retains  the  reversion 
in  fee.  So,  if  one  conveys  in  fiee,  to  the  use  of  himself  for  life,  then  to 
the  use  of  A  in  tail,  then  to  the  use  of  his  own  right  heirs,  a  reversion 
in  fee  remains  in  him  by  way  of  resulting  use.(3) 

9.  A  reversion,  like  a  vested  remainder,  though  not  to  take  effect  in 
possession  in  prceseuti,  but  only  iii  futuro,  is  still  an  immediate  fixed 
right  of  future  enjoyment;  and  subject  to  most  of  the  rights  and  lia- 
bilities incident  to  estates  in  possession.  Hence,  many  of  the  following 
remarks  may  be  regarded  as  alike  applicable  to  reversions  and  to  vested 
remainders. 

10.  A  reversioner  may  mantain  an  action  for  any  injury  done  to  the 
inheritance.  Thus,  where  an  action  was  brought  by  a  reversioner  for 
obstructing  his  lights,  Lord  Mansfield  held,  that  the  tenant  n-.ight  sue, 
and  the  reversioner  also,  as  the  injury  would  affect  the  price  of  the 
estate,  if  the  latter  should  be  disposed  to  sell  it.(4) 

11.  So,  one  having  a  reversionary  interest  in  real  property,  may 
maintain  an  action  against  one  who  wrongfully  removes  fixtures  there- 
from. 

12.  A,  being  the  owner  of  a  factory  and  the  machinery  in  it,  gave 
bond  to  B,  to  convey  them  to  him  on  payment  of  certain  notes  given 
by  B  for  the  price ;  B  to  have  possession  of  the  property  until  he  failed 
to  pay  the  notes  at  maturity.  Possession  was  delivered  accordingly. 
Before  maturity  of  the  first  note,  a  creditor  of  B  attached  the  machinery, 
and  the  officer  removed  it,  having  notice  of  A's  title,  and  afterwards 
sold  it  upon  execution.  A  brings  an  action  against  the  officer,  declar- 
ing both  in  trover  and  in  case.  Held,  although,  if  B  had  himself  re- 
moved and  sold  the  machinery,  this  might  have  been  regarded  as  so 
putting  an  end  to  the  contract,  and  revesting  the  possession  in  A,  as  to 
justify  an  action  of  trover  against  the  puichaser;  yet  the  attachment 
madi;  by  the  creditors  of  B,  being  in  invitiim,  might  not  have  the  same 
efl'ect :  but  that  the  action  of  trespass  on  the  case  was  clearly  sus- 
taiiiaijle.(5)(a) 


(1)  On.  Lit.  46  b;  2  Cruise,  300. 

(2)  Co.  Lit.  22  b. 

(3)  Co.  Lit.  22  b;  Rocliell  w.  Tompkins,  1 


Strol.h  Equ.  114- 

(4)  Jesser  v.  Gifford,  4  Burr,  2141. 

(5)  Ayer  w.  Bartiett,  9  Pick.  156. 


(a)  In  this  casa,  tiie  amount  of  damnsres  recovered  was  three  tinf)es  the  suna  for  wiiich  th» 
prop  Tty  was  sold  by  the  oilL-er.  Held,  the  verdict  should  not  be  set  aside  for  excessive 
damai'es. 


CHAP.  LII.]  REVERSION.  565 

13.  Wliore,  as  was  the  case  in  New  York,  a  statute  gives  to  a  rever- 
sioner or  reniaindcr-nian  "an  action  of  waste  or  trespass,  notwithstand- 
ing any  intervening  estate  for  life  or  years;"  this  does  not  authorize  a 
plaintilf  to  bring  cither  of  these  actions  at  his  clcetioti,  but  merely  to 
bring  that  form  of  action  whieh  is  appropriate  to  the  particnjar  case 
that  occurs — that  is,  waste  against  the  tenant  himself, -and  trespass 
against  a  stranger.(l)(a) 

14.  A  reversioner  may  bring  an  action  on  the  case  in  nature  of  ivaste 
against  a  stranger,  for  ploughing  up  his  ground  and  carrying  away  the 
turf  thus  obtained.  Unlike  a  bare  wrongful  entry  on  land,  or  "mere 
outrage  on  the  possession  of  the  tenant,  for  which  he  might  be  com- 
pensated in  the  action  of  trespass,  these  are  permanent  injuries,  and 
entitle  the  reversioner  to  damages.  And  these  damages  he  is  not 
bound  to  recover  from  the  tenant;  but  may  have  his  action  against  the 
wrong-doer  himse]f(2)(i) 

15.  For  acts  which  merely  affect  injuriously  the 2)ossession  o?  the  land, 
a  reversioner  can  maintain  no  action. (c)  There  must  be  some  tangible 
injury  to  the  reversion.  Uence  the  declaration,  in  an  action  brought 
by  a  reversioner,  must  either  expressly  allege  the  act  to  have  been 
done  to  the  injury  of  his  reversion,  or  must  state  an  injury  of  such 
permanent  nature  as  to  be  necessarily  prejudicial  to  the  re  version. (cZ) 

(1)  Livingston  v.  Haywood,  11  John.  429.  |      (2)  Randall  v.  Cleaveland,  6  Conn.  328. 

(a)  With  regard  to  the  form  of  action  to  be  brought  by  a  reversioner,  it  would  seem  that 
trespass  cannot  be  maintained,  except  in  the  single  case,  where  tlie  actual  tenant  of  the  land 
is  a  tenant  at  will  or  at  yuflerance.  See  Reynolds  v.  Williams,  1  Texas,  311 ;  Tilgliman  v. 
Cruson,  4  llarring.  341  ;  Knetzer  v.  Wysoiig,  5  Gratt.  9.  It  has  indeed  been  suggested  ia 
Massachusetts,  (11  Mass.  526.)  that  even  in  case  of  a  lease  for  3-ear3,  for  any  act^  which  is 
principally  injurious  to  the  lessor,  such  as  cutting  down  the  trees  or  overturning  the  build- 
ings, this  form  of  action  might  lie  ;  but  the  prevailing  doctrin«  is  as  above  stated.  Even  if 
the  occupant  of  the  land  is  a  tenant  at  will,  some  authorities  hold,  that  the  reversioner  caa 
maintain  only  an  action  on  the  case.     The  King  v.  Watson,  6  K.  485-7;  Campbell  v.  Arnold, 

1  John.  511;  Tobey  v.  Webster,  3,  468:  Biddelbrd  v.  Onslow,  3  Lev.  209;  3  Woode,  193. 
But  very  ancient  cases  and  opinions  favor  the  action  of  trespass,  and  the  same  rule  has  been 
adopted  in  Massachusetta  2  Rolle's  Abr.  551  ;  Yr.  Bk.  19  II.  6,  45  ;  Starr  v.  Jackson,  11 
Mass.  519;  Hingliam  v.  Sprague,  15  Pick.  102.  So,  in  Connecticut,  where  the  owner  of  a 
building  leases  at  will  the  rooms  therein,  though  they  constitute  the  chief  parts  of  the  build- 
ing, he  is  not  tiiereby  put  out  of  possession,  so  as  to  preclude  him  from  suing  in  trespass  for 
the  destruction  of  the  building,  or  such  an  injury  to  it  as  to  render  it  untenantable.  Curiiss 
V.  Hoyt,  19  Conn.  154.  By  the  operation  of  the  Rev.  Sts  of  Mass.,  however,  which  require 
three  months'  notice  to  terminate  an  estate  at  will,  it  seems  case  and  not  trespass  is  now  the 
proper  form  of  action.  French  v.  Fuller,  23  Pick.  104.  See  Lunt  v.  Brown.  13  Maine.  236; 
Rowland  v.  Rowland,  8  Ohio,  40;  Anderson  v.  Nesmith,  7  N.  H.  167.  A  tenant  at  will 
may  himself  maintain  trespass  against  one  who  cuts  trees  on  the  land.    Howard  v.  Sedgoley, 

2  Shepl.  439.  So,  a  tenant  for  life  may  have  a  proceeding  for  damages  done  to  her  estate 
by  the  construction  of  a  railroad,  without  joining  the  remainder-man.  Railroad  v.  B-^j-er,  1 
Harris,  497.  By  the  New  York  Revised  Statutes,  (2,  339,)  a  rever.sioner  or  remainder-man 
may  maintain  the  action  of  waste  or  trespass  for  any  injury  to  the  inheritance,  notwithstand- 
ing an  intervening  estate  for  life  or  for  years. 

(b)  Tlie  owner  of  land  held  by  a  tenancy  at  will  may  bring  an  action  on  the  case  for  the 
obstruction  of  a  way  appurtenant  to  the  land,  if  damage  is  thereby  caused  to  him,  though 
neither  the  reversion  is  affected  nor  the  rent  reduced.     Gushing  v.  Adams,  18  Pick.  110. 

But  a  lessor  at  will  cannot  maintain  an  action  against  a  stranger,  for  entering  upon  the 
land,  demanding  rent  from,  and  making  a  lease  to,'  the  tenant,  if  the  reversion  sustains  no 
actual  damage  therefrom.     French  v.  Fuller,  23  Pick.  1 04. 

(c)  The  landlord  and  tenant  do  not  stand  in  the  relation  of  mincival  and  aoent.  Stark  v. 
Miller,  3  Misso.  470. 

{ih  Upon  the  same  principle,  a  declaration  against  an  owner  of  land  for  a  nuisance  to  the 
premises  of  his  neighbor,  by  means  of  neglected  drains,  must  allege  either  that  the  defend- 
ant was  the  occupier  of  the  drains,  or  that  the  nuisance  is  a  continuing  one.  Russell  v. 
Sheuton,  2  G.  &  Dav.  673.     A  reversioner  cannot  maintain  an  action  for  obstruction  of  a 


566 


REVERSION. 


[CHAP.  LIT. 


16  The  plaintiff  declared  as  reversioner  of  a  yard  and  part  of  a  wall 
occupied  by  his  tenant,  and  that  the  defendant  placed  on  said  part  of 
the  wall  quantities  of  bricks  and  mortar,  and  thereby  raised  it  to  a 
greater  height  than  before,  and  placed  pieces  of  timber  on  the  wall, 
overhanging  the  yard,  by  which  the  plaintiff  during  all  the  time  lost 
the  use  of  said  part  of  the  wall,  and  also  by  means  of  the  timber,  &c., 
overhanging  the  wall,  quantities  of  rain  and  moisture  flowed  from  the 
wall  upon  the  yard,  and  thereby  the  yard  and  said  part  of  the  wall 
have  been  injured,  without  stating  that  his  reversion  was  injured.  The 
judgment  was  arrested  after  verdict.(l) 

17.  Where,  by  virtue  of  special  provisions  in  a  lease,  the  lessee  has 
the  right  to  do  certain  acts  in  relation  to  the  land,  which  would  otherwise 
be  a  ground  of  action  against  him  by  the  lessor,  it  seems  the  lessor  can 
maintain  no  action  against  a  stranger  for  doing  such  acts,  or  at  most 
can  recover  only  nominal  damages.(2) 

18.  A  demised  land  to  B  for  years  at  an  annual  rent,  with  liberty 
to  dig  half  an  acre  of  brick  earth  annually.  B  covenanted  that  lie 
would  not  dig  more  ;  or,  if  he  did,  that  he  would  pay  a  certain  in- 
creased rent,  bein^;  after  the  same  rate  that  the  whole  brick  earth  was 
sold  for.  A  stranger  dug  and  took  away  brick  earth,  and  the  lessee 
brought  trespass,  and  recovered  full  damages  against  him.  Held,  B 
was  entitled  to  retain  the  whole  damages.  Chief  Justice  Mansfield  re- 
marked, that  the  terms  of  the  lease  gave  the  lessee  the  same  right  as 
the  lessor,  a  right  to  dig  and  sell  the  brick  earth.  The  lease  amounted 
to  an  absolute  sale  of  the  Avhole  brick  earth,  though  the  tenant  was  not 
to  puj  for  the  whole,  unless  he  used  it.  The  lessor  could  take  none  of 
it.  For  all  that  he  took,  the  lessee  might  recover  full  damages.  And 
the  lessor  could  not,  it  seems,  have  an  action  of  waste  against  the  les- 
see, but  might  sue  him  upon  the  covenant,  as  if  the  brick  earth  had 
been  expressl}''  sold,  it  having  been  taken  with  the  lessee's  knowledge. 
He  proceeds  to  remark,  "  it  is  not  necessary  to  prejudge  the  question, 
whether  the  lessor  can  sue  in  this  case.  But  I  have  great  difficulty  in 
finding  out  how  the  lessor  can  be  injured.  If  he  has  any  right,  it  must 
be  for  mere  nominal  damages."  Heath,  J.,  remarked,  that  the  lessor 
could  not  recover  damages  for  the  removal  of  the  soil,  for  that  is  sold 
to  another;  but  only  for  any  damage  possibly  done  to  the  inheritance, 
if  such  there  be,  in  the  manner  of  the  excavation.  Chambre,  J.,  dis- 
sented, on  the  ground  that  the  right  of  the  lessee  was  executory  merely  ; 
that  he  acquired  no  freehold  in  the  soil,  till  he  himself  elected  to  be- 
come a  purchaser  of  it ;  and  till  such  election,  he  had  a  mere  possessory 
right,  his  interest  beino-  the  difference  between  the  value  of  the  earth 


(1)  Jackson  v.  Pesked,  1  M.  &  S.  234  ; 
Baxter  v.  Taylor,  4  B.  &  Ad.  72  ;  Tucker  v. 
Newman,  11  Ad.  &  Kl.  40. 


(2)  Attersoll  v.  Stevens,  1  Taunt.  182. 


WHy,  unless  permanently  injurious,  or  involving  a  denial  of  his  riglit.  Hopwood  v.  Scofield, 
2  Carr.  A  K.  34.  The  plaintiff  demised  a  cottage,  without  exception  of  mines.  Held,  be 
might  maintain  an  action  on  the  case  against  a  third  person  for  an  injury  to  the  cottage  by 
an  excavation  of  coal,  though  it  did  not  clearly  appear,  whether  tliis  was  caused  by 
excavation  under  the  cottage  or  under  the  adjoining  house,  occupied  by  the  plaintiff 
himself  Raino  v.  Aldcrson,  4  Bing.  N.  702.  Where  land,  subject  to  a  nuisance,  is  leased 
by  the  owner,  and  the  nuisance  kept  up  subsequently  ;  the  reversioner  cannot  maintain  a 
bill  in  equity,  without  joining  the  lessee  as  plaintiff.  Ingraham  v.  Bunnell,  5  Met.  118.  In 
Massacliusetts,  a  reversioner  cannot  maintain  such  bill,  unless  the  injury  is  irreparable,  or 
the  remedy  at  law  insufficient.     Ibid. 


CHAP.  LII.]  REVERSION.  567 

taken  by  the  defendant,  and  tlie  price  that  tlie, lessee  must  have  paid 
for  it  if  he  had  taken  it  himself,  and  all  the  rernainin;^'  interest  being  in 
the  reversioner,  who  might  bring  an  action  on  the  case  against  the 
wrong-doer. 

19,  Where  a  third  person  docs  acts  which  are  in  their  nature  perma- 
nently injurious  to  the  estate,  as,  for  instance,  by  cuttii+g-down  trees, 
but  .by  the  license  of  the  lessee;  he  is  not  a  stranger,  within  the  mean- 
ing of  the  New  York  Statute,  which  gives  to  a  reversioner.  &c,,  an  ac- 
tion of  trespass  for  an  injury  to  his  estate  done  by  strangers.  The 
mere  want  of  privity  of  contract  between  the  wrong-doer  and  the 
lessor,  does  not  constitute  the  former  a  stranger;  because  this  construc- 
tion would  authorize  an  action  against  every  servant  or  laborer,  in  the 
employment  of  a  tenant,  who  should  do  an  act  injurious  to  the  lessor. 
The  general  rule  is,  that  in  a  case  of  this  kind,  both  the  lessor  and 
lessee  may  bring  their  respective  actions ;  but  in  this  instance  the  latter 
could  not  sue,  having  expressly  authorized  the  act.  The  lessee  would 
be  answerable  in  an  action  of  waste.  Every  act  that  would  be  a  trespass 
in  a  stranger,  is  not  necessarily  waste  in  the  tenant.  If  the  servant  of 
the  tenant  w'ere  liable  in  trespass  to  the  lessor,  he  might  sometimes  be 
made  liable  for  acts  which  the  lessee  might  do  with  impunity.  He 
must  therefore  be  allowed  to  make  the  same  defence,  which  the  lessee 
could  make  to  an  action  of  waste.  The  difficulty,  which  would  inevitably 
result  from  treating  such  person  as  a  stranger,  could  not  be  avoided, 
without  confounding  the  actions  of  trespass  and  w^aste.(l)(a) 

20,  But  it  has  been  held  in  ISTcav  Hampshire,  that  an  action  on  the 
case  for  waste,  lies  in  favor  of  a  reversioner  against  a  third  person,  who 
has  cut  timber  upon  the  land  by  virtue  of  a  sale  to  him  by  the  lessee  ; 
the  title  of  the  trees,  when  cut,  in  all  cases  remaining  in  the  rever- 
sioner ;  and  the  tenant  being  empowered  to-  cut  and  use  them  for 
specific  purposes  only,  but  not  to  sell  them.(2) 

21,  A  remainder-man  or  reversioner,  not  having  any  right  to  imme- 
diate possession  of  the  land,  cannot  lose  his  title  by  means  of  a  dis- 
seizin, or  adverse  possession,  bj^  a  stranger.  He  either  cannot,  or,  if 
he  can,  is  not  bound  to,  enter  during  the  particular  estate,  to  defeat 
the  wrongful  title, 

22,  Judge  Kent  thus  states  the  law  upon  this  point.  Neither  a  descent 
cast,  nor  the  statute  of  limitations,  will  affect  a  right,  if  a  particular 
estate  existed  at  the  time  of  the  disseizin,  or  when  the  adverse  pos.^es- 
sion  began  ;  because  a  right  of  entry  in  the  remainder-man  cannot 
exist  during  the  existence  of  the  particular  estate;  and  the  laches  of  a 
tenant  for  life  will  not  affect  the  party  entitled.  An  entry,  to  avoid 
the  statute,  must  be  an  entry /or  the  purpose  of  taking  possession  ;  and 
such  an  entry  cannot  be  made  during  the  existence  of  the  life  estate.(8) 

23,  So  it  is  said,  that  where   there  is  a  right  to  curtesy  in   land 

(1)  Livingston  v.  Mott,  2  Wend.  605.  i      (3)  Jackson  v.  Sciioonmaker,  4  Joliu.  402. 

(2)  Elliot  V.  Smith,  2  N.  D.  430.  j 

(a)  A  lessee  havinp  mortgajjed  his  interest  and  become  bankrupt,  the  assignee  removed 
certain  fixtures.  Held,  the  mortgagee  niigiit  maintain  an  action  against  him,  althongh  the 
lease  contained  a  covenant  to  deliver  up  nil  fixtures  to  the  landlord  ;  that  the  mortgagor, 
while  in  possession,  stood  as  a  tenant,  leaving  tiie  reversion  in  the  mortgagee ;  and  that  he 
was  entitled  to  recover  the  full  value  of  the  fixtures,  llitchmau  v.  Walton,  4  Mees  &,  W. 
409. 


568 


REVERSION. 


[CHAP.  LIL 


descended,  no  riglit  of  entry  descends  to,  or  can  vest  in,  the  lieir, 
during  the  continuance  of  that  estate. (1) 

24.  The  statute  does  not  run  against  reversioners,  &c.,  during  the 
continuance  of  the  particular  estate,  even  though  the  latter  did  not 
exist  at  the  time  the  disseizin  took  place ;  provided  it  was  imme- 
diately preceded  by  disabilities,  such  as  infancy^  kc,  which  prevented 
a  legal  entry.  The  subject  of  disabilities  will  be  considered  here- 
after.(2)(a) 

25.  A  tenant  f  )r  life  was  disseized,  and  the  disseizor,  and  those 
claiming  under  him  by  two  successive  descents^  visibly  occupied  the 
land  for  forty  years.  Held,  upon  the  death  of  the  tenant  for  life,  the 
reversioner  might  still  assert  his  title  to  the  land.(3) 

26.  In  Massachusetts,  although,  as  in  New  York,  a  reversioner,  &c., 
is  not  hound  to  enter  during  the  continuance  of  the  particular  estate  ; 
the  language  of  the  court  implies  that  he  7nay  enter.  Thus,  in  a  case 
of  alleged  forfeiture  by  the  particular  tenant,  Judge  Wilde  remarks, — 
"as  to  the  objection  of  forfeiture,  it  is  sufficient  to  remaik,  that  the 
demandants  do  not  claim  a  right  of  entry  arising  from  forfeiture.  _  If  a 
forfeiture  were  incurred,  they  were  not  bound  to  enter ;  and  if  the 
right  to  enter  for  that  cause  is  now  barred  by  the  statute  of  limitations, 
this  does  not  affect  the  right  of  entry,  arising  afterwards,  on  the  death 
of  tenant  for  life.  If  there  be  two  rights  of  entry,  one  may  be  lost 
without  impairing  the  other."(4)(&) 

27.  In  England,  a  reversion,  expectant  upon  an  estate  for  years,  is 
present  assets  for  payment  of  debts.  Thus,  it  is  now  settled,  though 
there  are  old  precedents  to  the  contrary,  that  an  heir  holding  such 
reversion  cannot  plead  the  estate  for  years  in  delay  of  execution,  upon 
a  suit  against  him  on  his  ancestor's  bond,  but  must  confess  assets. 
The  grounds  of  this  doctrine  are,  that  an  estate  for  years,  at  common 
law,  was  an  interest  not  recognized  by  the  law  ;  and  that,  although  an 
execution  may  issue  upon  the  judgment  against  the  heir,  yet  the  lessee 
may  defend  against  an  ejectment  by  the  title  of  his  lease.(5) 

28.  A  reversion,  expectant  upon  an  estate  for  life,  is  quasi  assets. 
The  heir  of  such  reversioner  may  plead  specially  the  intervening 
estate,  but  the  plaintiff  may  take  judgment  of  it  quando  accident, 
or  a  judgment  to  recover  the  debt  and  damages,  to  be  levied  when 
the  reversion  shall  fall  in ;  and  a  special  writ  shall  issue  accord- 
inglY.(6j(c) 


(1)  Jackson  v.  Sellick,  8  John.  269. 

(2)  Jackson  v.  Johnson,  5  Cow.  li. 

(3)  Walliiigford  v.  Hear),  15  Mass.  471. 

(4)  Stevens  v.  Winship,  1   Pick.  327;  Mil- 
ler V.  Ewing,  6  Cusli.  34. 

(5)  2  Cruise,  302  ;  Smitli  v.  Angel,  1  Salk. 


354:  2  Ld.  Ray.  783  ;  7  Mod.  40;  Osbaston 
V.  Stanhope,  2  Mod.  50;  Villers  v.  Handley, 
2  Wils  49;  Murrell  v.  Roberts,  11  Ired.  424. 
(6)  Ibid.;  Dyer,  373  b;  Barton  v.  Smith, 
13  Pet.  464. 


(a)  See  Vol.  II — Disalnlities ;  Dissd'/An. 

(6)  The  same  principle  is  adopted  by  statute  in  Maine.  Me.  Rev.  St.  621.  In  Wiscon- 
sin, (Rev.  Sts.  584,)  a  reversioner  may  defend  a  suit  brought  against  the  particular  tenant. 
If  he  make  default  or  give  up,  and  judgment  be  rendered  against  him  ;  at  tlie  termination 
of  the  particular  estate,  the  reversioner  may  recover.  A  recovery  by  agreement  against  a 
tenant  for  life  is  void  against  the  reversioner,  unless  he  appeared.     lb. 

(c)  In  most  of  the  cases  upon  this  subject,  the  bonds,  of  wiiich  payment  was  claimed, 
were  entered  into  by  the  person  who  liad  ijeen  once  seized  in  fee  in  possession,  who  had 
afterwards  created  the  limitations  of  the  estate,  and  had  also  died  last  seized  of  the  fee;  so 
that  the  heir,  in  claiming  the  reversion  on  the  determination  of  the  particulalari  mitations, 


CHAP.  Lir.]  REVERSION.  5Q9 

29.  The  question,  liow  far  a  reversion  in  the  liamls  of  heirs  is  re- 
garded as  an  aetual  estate,  with  res|)eet  to  its  liability  for  debts  as 
well  as  in  other  respects,  will  be  considered  hereafter  under  the  title 
of  Descent.  A  single  case  only,  anil  a  lew  "jeneral  observations  upon 
the  subject,  will  be  here  given, 

30.  A  devise  was  made  to  one  for  life,  afterwards  th-Cestate  to  be 
distributed  as  if  no  devise  had  been  made.  A,  one  of  the  heirs  of 
the  testator,  dies  during  the  continuance  of  the  life  estate.  The 
question  arose,  whether  A's  heir,  after  the  life  estate  was  determined, 
inherited  to  his  father  or  to  his  grandfather,  the  testator,  and  whether 
A's  debts  w^ere  upon  his  death  to  be  paid  from  this  reversion,  now- 
become  possession.  Held,  at  common  law,  A  had  a  share  of  the 
reversion,  and  might  aliene  it,  or,  by  an  obligation  binding  his  heirs, 
might  render  the  estate  assets  in  their  hands.  So,  if  judgment  should 
be  rendered  against  him  before  his  death,  execution  might  issue 
against  the  estate  after  his  death.  But  still,  none  of  these  things 
having  taken  place,  on  the  determination  of  the  life  estate,  A's  son 
takes  as  heir  of  the  testator,  and  not  as  heir  of  A.  Therefore,  by  the 
common  law  rule,  the  reversion  would  not  be  liable  for  A's  debts ; 
but  by  Statute  1783,  c.  36,  and  following  acts,  reversions  are  made 
liable  in  Massachusetts  for  debts,  under  the  general  denomination  of 
real  estate.  Hence  the  administrator  of  A  might  take  the  estate  as 
assets.(l) 

31.  A  very  important,  perhaps  the  leading  American  case,  upon  this 
subject,  is  that  of  Cook  v.  nannnond,{2)  in  the  United  States  Circuit 
Court.  In  the  course  of  his  learned  and  able  opinion.  Judge  Story 
makes  the  following  general  remarks.(3) 

32.  Where  the  estate  descended  is  a  present  estate  in  fee,  no  person 
can  inherit  who  cannot,  at  the  time  of  the  descent  cast,  make  himself 
heir  of  the  person  last  in  the  actual  seizin  thereof;  that  is,  as  the  old 
law  states  it,  seisina  facit  stipiiem.  But  of  estates  in  expectanev,  as  re- 
versions and  remainders,  there  can  be  no  actual  seizin  during  the  exis- 
tence of  the  particular  estate  of  freehold  ;  and,  consequently,  there  can- 
not be  any  mesne  actual  seizin,  which  of  itself  shall  turn  the  descent,  so 
as  tojinake  any  mesne  reversioner  or  remainder-man  a  new  stock  of  de- 
scent, whereby  his  heir,  who  is  not  the  heir  of  the  person  last  actually 
seized  of  the  estate,  may  inherit.     The  rule,  therefore,  as  to  reversions 

(1)  Whitney   v.    Whitney,    14   Ma3S.    88.1      (2)  4  Mas.  467. 
See  Rich  v.  Waters,  22  Pick!  563.  I      (3)  lb.  484. 


was  oliligcd  to  derive  title  from  the  origiiiil  debtor.  But  it  has  been  also  held,  in  some 
cases,  that  such  reversion  is  liable  to  the  bond  debts  of  an  intermediate  tenant  for  life,  who 
becomes  entitled  to  the  reversion.  It  is  said,  the  obligor  liad  actual  seizin  of  the  rever- 
sion by  his  seizin  as  tenant  for  life,  lie  might  have  sold  it,  and  therefore  might  charge  or 
incumber  it;  though,  strictly  speaking,  his  bond  was  no  charge  upon  the  reversion,  but 
only  upon  the  heir,  in  respect  of  sudi  reversion  descending.  And  this  reversion  was  prop- 
erly, the  instant  it  vested  in  the  heir,  assets  by  descent  in  Lis  hands,  though,  before,  only 
dormant,  potential  assets.     Smith  v.  r*arker,  2  Black.  1230. 

The  doctrine  above  stated,  however,  has  been  questioned;  and  it  lias  been  contended, 
that,  as  one  who  claims  a  reversion  by  descent  must  make  himself  heir  to  the  donor,  and 
not  take  as  heir  to  any  of  the  intermediate  heirs,  because  they  never  had  actual  seizin  ;  such 
reversion  in  his  hands  is  a.ssets  of  the  donor,  but  not  of  the  intermediate  heirs.  Tweedale 
V.  Coventry,  1  Bro.  240 ;  2  Saua.  8,  n.;  Doe  v.  Hutton,  3  B.  &  P.  G51 ;  4  Yin.  Abr.  451 ;  1 
Yes.  174. 


[S. 


570  REVERSION.  [CHAP.  LII. 

and  remainders  expectant  upon  estates  in  freehold  is,  that  unless  some- 
thing is  done  to  intercept  the  descent,  thej  pass,  when  the  particular 
estate  falls  in,  to  the  person  who  can  then  make  himself  heir  of  the  ori- 
ginal donor,  who  was  seized  in  fee  and  created  the  particular  estate,  or, 
if  it  be  an  estate  by  purchase,  the  heir  of  him  who  was  the  first  pur- 
chaser of  such  reversion  or  remainder.  But,  while  the  estate  is  thus  in 
expectancy,  the  mesne  heir,  in  whom  the  reversion  or  remainder  vests, 
may  do  acts  which  the  law  deems  equivalent  to  an  actual  seizin,  and 
which  will  change  the  course  of  the  descent,  and  make  a  new  stock. 
Thus,  he  may,  by  a  grant  or  devise  of  it,  or  charge  upon  it,  appropriate 
it  to  himself,  and  change  the  course  of  the  descent.  In  like  manner,  it 
may  be  taken  in  execution  for  his  debt  during  his  life,  and  this  in  the 
same  manner  intercepts  the  descents.  But,  if  no  such  acts  be  done,  the 
rule  above  stated  prevails,  and  the  heir  of  the  donor  shall  take  the  es- 
tate, though  he  be  not  heir  of  the  reversioners,  &c.  Thus,  in  case  of  an 
estate  in  dower  or  by  the  curtesy,  after  the  death  of  the  last  owner  in 
fee,  the  heir  only  takes  only  a  reversion.  But,  it  is  a  misnomer  to  call 
it  a  case  of  suspended  descent;  for  the  reversion  descends  and  vests  ab- 
solutel}^  in  the  heir  ;  he  may  sell  it,  incumber  it,  devise  it,  and  it  is  sub- 
ject to  execution  as  part  of  his  property  during  his  life. 

33.  A  reversion  expectant  on  an  estate  tail  is  said  not  to  be  assets 
during  the  continuance  of  the  latter,  being  deemed  of  no  value,  by  rea- 
son of  the  power  of  the  tenant  to  bar  the  entailment  by  a  common  re- 
covery. But  such  reversion  is  assets,  when  it  falls  into  possession  ;  and 
liable  to  the  judgments  recovered  against  all  who  were  ever  entitled  to 
it.  Also,  to  all  conveyances,  charges  and  leases  made  by  such  persons, 
and  the  covenants  contained  in  them.(l)(a) 

3-i.  In  regard  to  contracts  and  conveyances  made  hy  those  holding 
expectant  interests,  the  law,  regarding  them  as  from  the  nature  of  their 
estates  peculiarly  liable  to  imposition,  has  established  peculiar  rules  for 
their  protection.  An  heir  has,  in  strictness,  neither  a  reversion  nor  re- 
mainder, (except  in  case  of  a  contingent  remainder,  limited  expressly  to 
the  heirs  of  one  living;  and  to  this  the  rules  in  question  are  not  appli- 
cable, because  a  contingent  remainder  cannot  be  conve3'ed.)(i)  He  has 
a  mere  expectancy,  wholly  subject  to  the  disposition  of  his  ancestor.    But, 

(1)  2  Cruise,  303;  Gifford  v.  Barker,  4  Via.  451;  Sjmonda  v.  Cudmore,  4  Mod.  1 ;  Shel- 
buriie  V.  Biddulph,  6  Bro.  Pari.  356. 

(a)  Statute  3  "Wm.  &  Mary,  ch.  14,  rendered  a  devise  of  lands  fraudulent  and  void  as 
against  creditors  of  the  devisor.  Before  this  act,  there  was  no  method,  either  at  law  or  in 
equity,  to  subject  lands  devised  to  payment  of  debts.  The  reason  was,  that  tiie  ancestor  by 
his  specialty  bound  only  the  heir,  and  not  even  him,  unless  he  was  named,  and  never  beyond 
the  extent  of  the  assets  which  came  to  him.  It  has  been  held  under  this  statute,  that  where 
the  heir  of  an  estate  tail,  and  of  the  reversion  in  fee  expectant  upon  it,  devises  the  estate  and 
then  dies  without  issue,  whereby  the  devisee  acquires  a  fee-simple  in  possession,  the  estate 
is  liable  in  the  bands  of  the  latter  for  debts  of  the  ancestor  of  the  devisor,  who  made  the  set- 
tlement in  tail.  The  heir  is  regarded,  not  merely  as  a  representative  of  the  debtor,  but  as 
himself  a  debtor  within  the  words  of  the  statute.     Kynaston  v.  Clarke,  2  Aik.  204. 

In  Massachusetts,  a  reversion  expectant  upon  an  estate  tail  is  a  vested  interest,  devisable, 
and  which  will  pass  under  a  general  residuary  clause.     Steel  v.  Cook,  1  Met.  281. 

If  limited  by  way  of  executory  devise,  upon  the  contingency  of  issue  by  a  future  marriage 
of  one  of  the  tenants  in  tail,  the  residuary  deviseeof  the  reversion  may  grant  it  to  a  third  per- 
son, subject  to  the  executory  devise.     lb. 

(Jj)  As  to  the  distinction  between  contingent  interests,  such  as  executory  devises,  etc.,  which 
are  assignable,  and  mere  jMssibilities,  such  as  the  expectancy  of  an  heir,  or  the  prospect  of  a 
legacy;  wbicli  are  not — see  Forlescue  v.  Satterthwaite,  1  Ired.  566. 


CHAP.  LII]  REVERSION.  571 

inasmuch  as  all  expectant  interests,  with  respect  to  the  principle  now  to 
be  considered,  stand  upon  substantially  the  same  foundation  ;  it  seems 
not  inappn^pi-iate  to  present  a  general  view  of  the  subject  under  the 
present  title. 

35.  The  general  principles  of  law  upon  this  subject  are  thus  stated 
by  Parsons,  Ch.  J.,  in  the  case  of  Boynton  v.  Iluhhard.tX)  When  an 
heir  gives  a  bond,  on  receiving  a  sum  of  monc}',  to  pay  a  laruer  sum, 
exceeding  legal  interest,  upon  the  death  of  his  ancestor,  if  the  heir  shall 
be  then  living;  if  there  is  only  a  reasonable  indenniit\'  for  the  hazard, 
it  may  be  enforced  at  law.  But,  if  his  necessities  are  taken  advantage 
of,  he  is  relieved  as  against  an  unconscionable  bargain,  on  payment  of 
principal  and  interest.  So,  when  one  having  a  reversion  or  remainder, 
contracts  to  sell  it,  on  becoming  possession,  for  money  paid  at  the  time 
of  the  bargain,  a  similar  rule  is  adopted.  Ilere  there  may  be  a  compu- 
tation of  tlie  risk,  as  involved  in  the  continuance  of  the  preceding  es- 
tate ;  and  the  bargain,  like  that  before  mentioned,  may  be  relieved 
against,  if  unconscionable.  If  the  reversion  or  remainder  be  actually 
conveyed,  equity  alone  can  give  relief,  unless  there  were  absolute  fraud. 
But  a  contract,  made  by  an  heir,  to  convey  on  the  death  of  his  ancestor, 
living  the  heir,  a  certain  undivided  part  of  what  shall  come  to  the  heir 
by  descent,  distribution  or  devise,  is  a  fraud  upon  the  ancestor,  pro- 
ductive of  public  mischief,  and  moreover  in  the  nature  of  a  xvager^  with- 
out furnishing  any  means  of  computing  the  risks,  &;c.,  as  to  the  amount 
of  propert}^  and  the  value  of  the  inheritance,  and  is,  therefore,  void  both 
in  law  and  equity. 

36.  It  has  been  since  held,  however,  in  the  same  State,  that  such  a 
contract  is  valid,  if  made  with  the  ancestor's  consent,  for  a  valuable 
consideration,  and  without  imposition  upon  the  heir.(2) 

37.  Judge  Story  remarks,  that  relief  has  be'en  constant!}^  granted  in 
equity,  in  what  are  called  catching  bargains,  with  heirs,(3)  and,  in  modern 
times,  reversioners  and  expectants,  in  the  life  of  their  parents  or  other 
ancestors,  or  during  the  continuance  of  prior,  particular  estates.  Many, 
and  indeed  most  of  the  cases  have  been  compounded  of  all  or  every 
species  of  fraud  ;  there  being  sometimes  proof  of  actual  fraud,  which  is 
always  decisive.  There  is  always  fraud  presumed  or  inferred  from  the 
circumstances  or  conditions  of  the  parties  contracting ;  weakness  on 
one  side,  usury  on  the  other,  or  extortion  or  advantage  taken  of  that 
weakness.  Generally,  there  has  been  deceit  upon  third  persons  ;  the 
father  or  other  ancestor  has  been  kei)t  in  the  dark,  and  thereby  misled  and 
seduced  to  leave  his  estate,  not  to  his  heir  or  family,  but  to  a  set  of  art- 
ful persons,  who  have  divided  the  spoil  beforehand.  The  doctrine  is 
founded,  in  part,  upon  the  policy  of  maintaining  parental  and  quasi  pa- 
rental authority,  and  preventing  the  waste  of  family  estates ;  as  well 
as  of  guarding  distress  and  improvidence  against  calculating  rapacity. 
Equity  treats  parties  in  this  situation  almost  like  infants,  incapable  of 
contracting;  and,  although  formerly  undue  advantage  must  be  shown 
to  have  been  taken,  it  now  requires  the  purchaser  to  malce  good  the  bar- 
gain, that  is,  not  merely  to  show  the  absence  of  fraud,  but  payment  of 
a  full  consideration.     The  court  will  relieve,  upon  the  general  principle 


(1)  7  Mass.  119-22.    See  Wheeler  r.  Smith, 
9  How.  55;   Hallett  v.  Collins,  10,  174. 

(2)  Fitch  V.  Fitch,  8  Pick.  480. 


(3)  1  Story  on  Eq.  327-33  ;  Chesterfield  v. 
.Tanssen,  2  Ves.  157.  See  Newtoa  v.  Hunt, 
5  Sim.  511. 


572  REVERSION.  [CHAP.  LH. 

of  mischief  to  the  public,  without  requiring  any  particular  evidence  of 
imposition,  unless  the  contract  is  shown  to  be  above  all  exception. 
Years  do  not  seem  to  make  much  difference  in  the  case  of  expectant 
heirs ;  since  the  aim  of  the  rule  is  principally  to  prevent  imposition 
upon  ancestors.  And  the  same  rule  applies,  it  seems,  to  reversion- 
ers and  remainder-men,  if  necessitous,  distressed  and  embarrassed. 

38.  The  policy  of  this  rule  has  been  questioned,  and  it  has  been  thought 
to  have  the  effect  of  throwing  necessitous  owners  of  expectancies  into 
the  hands  of  those  who  are  likely  to  take  advantage  of  their  situation ; 
for  no  one  can  securely  deal  with  them.  It  has  also  been  doubted, 
whether  the  rule  is  strictly  applicable,  unless  a  reversioner  also  combines 
the  character  of  heir.  But  the  weight  of  authority  seems  to  negative 
any  such  restriction  or  limitation.(a) 

39.  The  rule  above  referred  to,  being  founded  in  part  at  least,  in  the 
case  of  heirs,  upon  the  ground  of  imposition  practicedon  the  ancestor, 
is  inapplicable,  as  has  been  seen,  (sec.  36,)  where  the  transaction  was 
known  and  not  objected  to  by  him  ;  and,  a  fortiori,  if  he  expressly 
sanctions  or  adopts  it,  or  the  heir  is  of  mature  age.  It  seems  there  is 
the  same  exception  to  the  rule,  where  the  party  is  a  reversioner,  &c., 
and  the  bargain  is  known  and  not  objected  to  by  the  prior  tenant. (1) 

40.  Another  reason  of  the  rule  creates  another  exception  to  it ; 
namely,  where  the  party  is  not  dealing  under  the  pressure  of  necessity. 
But,  it  seems,  the  rule  is  applicable,  if  either  of  the  reasons  on  which 
it  is  founded,  exist ;  and  it  is  not  necessary  that  both  should  concur.(2) 

41.  If  the  heir  is  dealing  substantially  for  his  expectations,  although 
for  a  present  obligation  also,  which  it  is  hardly  possible  that  he  should 
discharge,  or  throwing  in  a  present  possession  worth  but  a  small  pro- 
portion of  the  whole,  equity  will  interpose ;  as  where  the  heir  received 
an  annuity  worth  about  one-sixth  of  the  value  of  the  reversion,  though 
an  interest  in  possession,  amounting  to  £99  a  year,  was  included  in  the 
sale.(3) 

42.  The  rule  in  question,  perhaps,  is  not  applicable,  where  there  is 
a  fair  though  secret  agreement  among  heirs  themselves  to  share  equally, 
and  thus  to  cut  off  all  attempts  to  overreach  each  other,  and  to  prevent 
all  exertions  of  undue  influence.(^4) 

^48.  In  relation  to  the  contracts  of  heirs,  &c.,  respecting  their  future 
estates,  as  they  are  not  void,  but  only  voidable  ;  in  general,  any  confir- 
mation of  them,  after  the  party  comes  in  possession,  and  the  former 
unfair  inducement  has  ceased,  will  render  them  valid.  But  it  will  be 
otherwise,  if  the  former  pressure  or  necessity  still  continues,  or  if  the 

(1)  King  V.  Hamlet,  2  My.  &  K  473-4.        i      (3)  Earl,  &c.  v.  Taylor,  4  Sim.  209-10.   See 

(2)  lb. ;  Porlmoro  v.  Taylor,  4  Sim.  182.       Potts  v.  Curtis,  Tounge,  543. 

'      (4)  1  Story.  334. 

(a)  In  South  Carolina,  it  is  remarked  by  Desaussure,  Chancellor:  "There  is  a  distinction 
made  between  the  cases  of  young  heirs  selling  expectancies,  and  of  others,  which  I  am  not 
disposed  to  support.  It  is  said,  that  the  former  are  watched  with  more  jealousy,  and  more 
easily  set  aside  than  others,  on  principles  of  public  policy.  This  was  certainly  true  at  first ; 
but  tlie  eminent  men  who  have  sat  in  Chancery,  have  gradually  applied  the  great  principles 
of  equity  on  which  relief  is  granted,  to  every  case  wliere  the  dexterity  of  intelligent  men 
had  obtained  bargains,  at  an  enormous  and  unconscientious  disproportion,  from  the  igno- 
rance, the  weakness,  or  the  necessities  of  others,  whether  young  heirs  or  not."  Butler  v. 
Haskell,  4  Desau.  687-8.  In  New  York,  it  is  held,  that  the  expectancy  of  an  heir  is  not  a 
subject  of  legal  transfer.     Tooley  v.  Dibble,  2  Hill,  641. 


OHAP.  LU.]  REVERSION.  57S 

party  acts  under  the  belief  that  the  original  contract  is  binding  upon 
him.  It  has  bi-en  held  in  some  cases,  that  if  tlie  contract  is  illegal  or 
iisurion,<:,  it  is  aljsolutely  void,  and  not  susceptible  of  conrirrnati(;n.(l) 

44.  If  the  heir  or  other  expectant,  after  being  restored  to  his  legal 
caj)acity,  becomes  opposed  to  the  other  party,  and  does  any  act,  by 
%vhich  the  rights  or  projiert}'  of  the  latter  are  injurioualy  affected; 
upon  the  principle,  which  forbids  a  party  to  repudiate  a  dealing,  and 
at  the  same  time  to  avail  himself  fully  of  all  the  rights  and  powers 
resulting  therefrom  ;  the  heir,  &c.,  will  not  be  allowed  to  rescind  the 
bargain.  So,  if  he  dispose  of  the  consideration  received  for  his  I'cver- 
sionary  interest,  in  such  way  that  it  can  never  be  restored  to  the  other 
party  in  its  original  condition  ;  he  will  not  be  allowed  to  rescind,  unless 
he  can  show,  that  this  disposition  was  made  under  a  continuance  of  the 
original  pressure.(2)(a) 

45.  In  Maryland,  the  Chancellor  may,  after  notice,  order  a  sale  of 
lands  in  the  State  belonging  to  any  uainor  who  resides  out  of  the 
United  States,  or  of  any  remainder  or  reversion  dependent  thereon,  for 
payment  of  his  debts.  A  subsequent  act  provides  for  the  sale  of  any 
reversion  belonging  to  a  minor,  dependent  upon  a  life  estate,  and  that, 
upon  the  assent  of  the  tenant  for  life,  the  annual  interest  or  a  suitable 
part  thereof  shall  be  paid  him  for  his  life. (3) 

46.  In  Maryland,  it  was  formerly  the  practice  to  assess  taxes  upon 
land  held  b}'  an  estate  for  life,  equally,  half  and  half,  upon  the  particu- 
lar tenant  and  the  reversioner  in  fee.  But  a  statute  provides  that  the 
whole  shall  be  assessed  upon  the  former  as  if  he  owned  the  fee.(4) 

47.  In  New  Jersey,  Michigan,  Mississi[)pi  ami  New  York,  it  is  pro- 
vided, that  a  reversioner,  &;c.,  may  be  admitted  to  defend  a  suit  brought 
against  the  tenant  for  life  at  any  time  before  judgment;  and  that  the 
former  shall  not  be  prejudiced  by  any  default,-surrender  or  giving  up 
of  the  land  by  the  latter.(5) 

48.  In  New  York,  a  process  is  provided,  by  which  reversioners  and 
remainder-men  may  annually  call  for  the  production  or  appearance  of 
tenants  for  life,  upon  whose  estates  their  expectancies  depend,  and 
whose  residence  is  unknown  or  concealed. (6) 

49.  In  Massachusetts,  where  a  tenant  for  life  recovers  the  land  by 
action,  and  pays  to  the  defendant  the  value  of  improvements  made 
upon  it  by  the  latter,  such  tenant  for  life  or  his  representatives,  at  the 
termination  of  his  estate,  may  recover  the  value  of  the  improvements, 
as  the}'  then  exist,  from  the  reversioner  or  remainder-man,  and  shall 
have  a  lien  therefor  upon  the  land,  as  if  it  were  mortgaged  for  pay- 
ment of  such  amount.  The  reversioner,  ko.,  may  also  have  a  bill  in 
equity  to  redeem,  as  iu  case  of  mortgage,  if  the  amount  is  not  agreed 
by  the  parties.  He  will  not  be  limited  to  three  years,  but  he  shall 
recover  no  balance  from  the  defendant,  though  the  rents  and  profits 

(1)  1  Story,  338-9,  anrl  n.  l      (4)  Md.  L.  1798,  cli.  00. 

(2)  Il)id. ;  King  v.  Hamlet,  2  My.  &  K.  I  (5)  1  N.  J.  Rev.  C.  346;  Midi.  L.  223; 
456.  Mi.s.si.  Rev.  C.  449 ;  2  N.  Y.  Rev.  Stut.  339. 

(3)  2  Md.  L.  129;  5  Ibid.,  ch.  154,  sec.  13.  |      (6)  2  N.  Y.  liev.  St.  343. 

(a)  A  reversion  was  pnrcliased  from  A  l)y  B,  at  a  pross  discount  from  its  value.  C,  hav- 
ing notii'p,  ten  years  ntterwanis  bou^iit  of  B  lor  a  lull  price,  A  joining  and  conlirming  the 
sale.  Held,  A  was  slill  cntith'd  to  a  decree  for  reconveyance  to  him,  upon  re-payuicnt  of 
the  original  price.     Addis  v.  Campbell,  4  Beav.  401. 


574 


JOINT  TENANCY. 


[CHAP.  LIII. 


have  exceeded  the  sum  due  for  the  improvements.  The  reversioner, 
&c.,  shall  be  considered  as  disseized  at  the  termination  of  the  prior 
estate,  and  the  statute  of  limitation  shall  run  against  him  accord- 
inglj.(l) 


CHAPTER  LIII. 


JOINT  TENANCY. 


1.  Number  and  connection  of  the_owners 

of  real  estate. 
3.  Joint  tenancy,  how  created. 
6.       "  "  in  a  remainder. 

8.      "  "  -       for  lives,  and  several  in- 

heritances. 

12.  Unities  necessary  to  Joint  tenancy. 

13.  Unity  of  interest. 

14.  "       "  title. 


16.  Unity  of  time. 

22.  "       '■  possession. 

23.  Survivorship. 

24.  Exceptions   to   the    rule   of   survivor- 

sliip. 
34.  "Who  may  be  joint  tenants. 

45.  Not  subject  to  charges  made  by  one, 

46.  Except  by  lease. 

52.  Severance  of  joint  tenancy. 


1.  With  respect  to  the  number  and  connection  of  the  owners  of  I'eal 
estate,  it  may  be  held,  according  to  the  English  law,  in  four  ways,  viz. : 
in  severalty,  joint  tenancy,  co-parceny,  and  common.  Upon  the  first  of 
these  kinds  of  tenancy,  of  course,  it  is  unnecessary  to  make  any  re- 
marks. In  Ohio,  it  is  said,  that  the  three  last  named  estates  are  reduced 
to  one  estate. (2) 

2.  Chancellor  Kent  says,  that  two  or  more  persons  may  have  an 
interest  in  connection  in  tlie  title  to  the  same  laud,  as  joint  tenants  or 
co-parceners,  or  in  the  possession  of  the  same  as  tenants  in  common. (3) 

8.  Where  lands  are  granted  or  devised  to  two  or  more  persons,  to 
hold  to  them  and  their  heirs,  for  their  lives,  or  for  another's  life ;  they 
all  take  a  joint  estate,  and  are  called  joint  tenants.(4) 

4,  Joint  tenancy  can  be  created  only  by  acts  of  parties,  and  never  by 
acts  of  law.(5) 

5.  Joint  tenancy  may  exist  in  a  remainder.  Thus,  if  a  conveyance 
be  made  to  two  persons,  and  the  heirs  of  their  two  bodies,  remainder 
to  them  two  and  their  heirs ;  they  are  joint  tenants  of  the  remainder 
in  fee,(6) 

6,  Conveyance  to  two  persons,  and  the  heirs  of  one  of  them.  They 
are  joint  tenants  for  life,  and  one  of  them  has  the  fee.  If  this  one  die, 
the  other  shall  hold  the  whole  by  survivorship  for  life.  So,  two  per- 
sons may  be  joint  tenants  for  life,  and  one  of  them  have  an  estate  tail. 
It  seems,  in  each  of  these  cases,  the  inheritance  vests  by  way  of  re- 
mainder,(7) 

7.  Lord  Coke  says,  that  when  land  is  given  to  two  persons,  and  the 
heirs  of  one  of  them,  he  in  remainder  cannot  grant  away  his  fee-simple, 
Mr.  Hargrave's  construction  of  this  passage  is,  that  although  in  some 
respects  the  life  estate  and  the  remainder  are  vested  in  one  person,  as 


(1)  Mass.  Rev.  St. 

(2)  Walk.  291. 

(3)  4  Kent,  357. 

(4)  Lit.  277. 


615. 


(5)  2Cruis3,  431. 

(6)  Co.  Lit.  183  b. 

(7)  Lit.  285. 


CHAP.  LI II.]  JOINT  TENANCY.  575 

di.stinct  interests,  yet  they  are  so  far  consolidated  that  the  latter  cannot 
be  transferred  separately,  and  as  a  remainder.(l) 

8.  Two  men  may  have  joint  estates  for  their  lives,  and  yet  several 
inheritances,  in  the  same  land.  Thus,  if  a  conveyance  is  made  to  A 
and  B,  bein<A-  both  males  or  both  females,  and  the  lieirs  of  their  bodies, 
and  both  of  them  have  issue;  during-  their  joint  lives  theyliold  as  joint 
tenants  ;  ujjon  A's  death,  B  will  take  the  whole  for  his  life;  and,  upon 
B's  death,  the  respective  issue  of  A  and  B  will  hold  as  tenants  in  com- 
mon. It  is  said,  however,  that  in  case  of  a  devise  in  this  form,  it  is 
not  the  intention  of  the  testator  that  the  surviving  tenant  should  turn 
out  the  issue  of  the  otlier.(2) 

9.  So,  a  devise  to  A  and  B  and  their  issue,  and  in  default  of  such 
issue,  to  C,  gives  A  and  B  a  joint  estate  for  life  and  several  in- 
heritances.(3) 

10.  A  limitation  to  a  man  and  woman  and  their  issue,  it  seems,  will 
not  create  several  inheritances,  because  it  will  be  j)resumed  to  contem- 
plate their  intermarriage  together,  and  the  birth  of  joint  issue.  But  a 
limitation  to  two  men  and  one  woman,  and  the  htirs  of  their  three 
bodies  begotten,  will  create  several  inheritances;  because  the  chance  of 
the  woman's  marrying  both  men,  though  possible,  is  a  possibility  upon 
a  possibility.  The  same  principle  ajiplies  to  a  gift  made  to  one  man 
and  two  women  ;  and  also  to  parties  whose  relationship  precludes  the 
possibility  of  their  legally  marrj'ing  each  other. 

11.  Lord  Coke  says,  in  all  these  cases  there  is  no  division  between, 
the  estates  for  life  and  the  several  inheritances.  The  tenants  for  life 
cannot  convey  away  the  inheritance  after  their  decease,  because  it  is 
divided  only  in  supposition  and  consideration  of  la\v ;  and  to  some  pur- 
poses the  inheritance  is  said  to  be  execided.(A) 

12.  Joint  tenancy  requires  the  following  points  oi  unity ^  viz. :  of  in- 
terest,  (ilk,  thne  nnd  2y>ssessio}i. 

13.  With  respect  to  unity  of  interest  it  is  said,  that  one  joint  tenant 
cannot  be  entitled  to  one  period  of  duration  or  quantity  of  interest, 
and  the  other  to  a  different  one.  This  principle,  however,  seems  to  be 
only  j)artially  true,  and  the  instances  and  illustrations,  adduced  in  the 
books,  show  a  discrej)ancy  for  which  it  is  difficult  to  discover  an}'  satis- 
factor}^  reason.  Thus,  a  conveyance  to  two  persons,  to  the  one  in  fee 
and  the  other  in  tail,  or  to  the  one  for  life  and  the  other  for  years, 
does  not  create  a  joint  tenancy.  So  a  reversion  upon  a  fi-eehold,  or  a 
right  of  action  or  of  entry,  cannot  stand  in  jointure  with  a  freehold 
and  inheritance  in  possession.  But,  on  the  other  hand,  it  has  been 
seen,  (see.  6,)  that  a  limitation  to  A  and  B,  and  the  heirs  of  A,  makes 
A  and  B  joint  tenants  for  life.  So  a  right  of  action  and  a  right  of 
entry  may  stand  in  jointure.(5) 

1-i.  Unity  of  title  requires  that  the  estate  of  joint  tenants  be  created 
by  the  same  limitation  or  lawful  act  of  [)arty,  or  by  the  same  disseizin 
or  unlawful  act.(a) 

(1)  Co.  Lit.  184  b  and  n.  2.  j  (3)  lb. 

(2)  Lit.  283  ;  Cook  v.  Cook,  2  Vern.  545  ;  i  (4)  lb.;  Co.  lit.  184  a. 
Wilkiii.«on  v.   Spcarmnn,   2    P.    Wms.  530  ;  (5)  Co.  Lit.  182  b. 
Printed  Cas.  H.  of  L.  1705.  ) 

(fl)  Persons  joining  in  a  disseizin  are  joint  tenants.  Hence,  if  one  of  tliem  die  seized, 
after  peaceable  posses.sion  for  five  years,  no  descent  is  cost,  and  the  dissciaee  still  retains  bis 
right  of  entrj.     Putney  v.  Dresser,  2  Met.  583. 


576 


JOINT  TENANCY. 


[CHAP.  LIIL 


15.  Althougb  some  of  tliw  persons  to  whom  an  estate  is  limited  take 
by  common  law,  and  others  by  way  of  use,  they  may  still  be  joint 
tenants.  Thus,  where  a  fine  was  levied  to  A  and  B,  to  the  use  of  A 
and  B,  and  also  to  C  ;  held  a  joint  tenancy,  though  A  and  B  were  in 
by  the  tine,  and  C  by  the  statute  of  uses.(l) 

16.  With  respect  to  imity  of  time,  the  general  principle  is  stated 
to  be,  that  it  is  necessary  to  a  joint  tenancy  that  the  estate  become 
vested  in  all  the  tenants  at  the  same  instant.  Thus,  if  a  conveyance 
is  made  to  A  for  life,  remainder  to  the  heirs  of  B  and  C  ;  upon  the 
death  of  B,  a  moiety  of  the  remainder  vests  in  his  heirs,  and  upon  the 
death  of  C,  the  other  moiety  in  C's  heirs;  and  therefore  these  respec- 
tive heirs  are  not  joint  tenants.(2) 

17.  This  principle,  however,  does  not  apply  to  the  learning  of  uses 
and  executory  devises. 

18.  It  has  also  been  held  inapplicable  to  husband  and  wife.  Thus, 
if  a  man  convey  to  the  use  of  himself  and  of  any  future  wife  ;  upon 
his  marriage,  the  husband  and  wife  become  joint  tenants,  although 
their  estates  vest  at  different  times.  This,  however,  is  a  case  of  use, 
and  may  be  sustained  upon  that  principle  alone, 

19.  So,  where  limitations  take  effect  at  different  times,  still,  if  the 
root  is  joint,  as  in  case  of  limitations  to  successive  children  of  one 
parent ;  there  may  be  a  joint  tenancy.  And  in  one  case  it  is  stated, 
generally,  that  a  joint  claim  hj  the  same  conveijance  makes  joint  tenants, 
and  not  the  time  of  vesting.  And  in  another,  that  if  the  parties  claim 
by  one  title,  though  taking  at  different  times,  this  is  a  joint  tenancy. (3) 

20.  Devise  to  a  woman  and  her  children  on  her  body  begotten  or  to 
be  begotten  by  A,  in  fee,  Held,  the  woman  and  her  children  were 
joint  tenants,  though  the  estate  vested  in  them  at  different  limes.(4) 

21.  Mr.  Hargrave  was  of  opinion,  that  these  exceptions  to  the  gene- 
ral principle  are  limited  to  conveyances  by  way  of  use  and  to  devises. 
And  some  decided  cases  seem  to  favor  this  opinion.  But  Lord  Thur- 
low  appears  to  have  rejected  the  distinction  between  limitations  to  uses 
and  otiiers.(5)(tt) 

22.  With  respect  to  unity  of  possession,  joint  tenants  are  said  to  be 
seized  'per  ray  et  per  tout.  Each  of  them  has  the  entire  possession  of  every 
part,  and  of  the  whole.  Each  has  an  undivided  moiety  of  the  whole, 
not  the  whole  of  an  undivided  moiety.  Hence  the  possession  and  sei- 
zin of  one  is  that  of  the  other  also. 

23.  The  principal  incident  to  an  estate  in  yAui  tenancy,  is  the  right 
ol  survivorship)  ;  by  which,  upon  the  death  of  one  joint  tenant,  whether 
the  estate  is  a  fee,  or  a  joint  term  for  years,  or  a  trust,  his  interest 
passes,  not  to  his  heirs  or  other  representatives,  but  to  the  surviving  co- 


(1)  2  Cruise,  43.'i;  Co.  Lit.  188  a. 

(2)  Watts  V.  Lee,  N03',  I24. 

(3)  Co.  Lit.  188  a;  4  Kent,  358;  Gilb. 
Uses,  71  ;  Blamford  v.  Blamford,  3  Bulstr. 
101;  Aylor  v.  Cl.ep,  Cm.  Jac.  259;  Earl, 
Ac.  V.  Temple,  1  Ld.  Raym.  310;    2  Prest. 


on   Abstr.  G7 ;    Mattliews  v.  Temple,  Comb. 
4G7. 

(4)  Gates  v.  Jackson,  2  Stra.  1172. 

(5)  Co.  Lit.  188  a,  n.  13  ;  Samme's  case,  13 
Co.  54 ;   Stratton  v.  Best,  2  Bro.  2-33. 


(a)  III  a  late  case  of  personal  property,  the  old  doctrine  upon  this  subject  was  adhered  to. 
Bequest  to  A  for  life,  and  alter  her  death,  to  her  children,  wlien  they  become  of  age.  A 
had  two  cliildren,  who  lived  to  be  of  age.  Held,  they  took  as  tenants  in  common,  because 
the  property  vested  iu  them  at  diOerent  times.     Woodgate  v.  Unwin,  4  Sim.  129. 


CHAP.  LIII.]  JOINT  TENANCY.  577 

tenant  or  co  tenants.     And  though  one  of  two  lessees  for  years  dies  be- 
fore entry,  the  survivor  shall  take  his  intcrest.(l) 

24.  In  some  cases,  however,  joint  tenancy  may  exist  wilhoul  the 
mutual  right  of  survivorship. 

25.  Lease  to  A  and  B  during  tht)  life  of  A.  U])on  the  death  of  B, 
A  takes  the  whole ;  but  upon  the  death  of  A,  B  takes  !iothing.(2) 

26.  Although,  as  has  been  seen,  trusts  are  subject  to  survivorship, 
yet  the  general  principle  is,  that  the  right  of  survivorship  is  looked 
upon  as  odious  in  equity^  being  often  attended  with  hardship  and  injus- 
tice. Hence,  upon  the  death  of  one  joint  owner,  his  estate  has  been 
held  to  pass  to  his  heirs.(3) 

27.  Thus,  if  one  of  two  mortgagees,  who  have  jointly  advanced 
the  mortgage-money,  dies ;  his  representatives  shall  have"  a  share  of 
the  money  when  paid.  This  principle,  however,  seems  to  be  limited  to 
cases,  where  they  advance  unequal  portions  of  the  whole  sum.  If  each 
advances  a  moiety,  which  appears  by  the  deed,  this  is  regarded  as  a 
joint  purchase  of  the  chance  of  survivorship.  When  the  proportions 
are  unequal,  the  mortgagees  are  regarded  in  law  either  asjxuiners, — in 
which  case,  though  the  survivor  take  the  whole  legal  estate,  he  becomes 
a  trustee  for  the  other;  or  as  actual  tenants  in  common,  with  no  ri'^ht 
of  survivorship.(4) 

28.  Upon  the  same  principle,  where  one  of  two  joint  purchasers  of 
land  lays  out  money  in  repairs  and  improvements,  and  dies ;  the  ex- 
pense is  a  lien  upon  the  land  in  favor  of  his  representatives.(5) 

29.  The  doctrine  above-stated  has  been  broadly  laid  down  bv  Sir 
Joseph  Jekyll  in  this  form  ;  that  the  payment  of  money  creates  a"^tr.ust 
for  the  parties  who  advance  it,  and  an  undertaking  upon  the  hazard  of 
profit  or  loss  is  in  the  nature  of  merchandiziyig,  Avhen  the  jus  accrescendi 
is  never  allowed. 

80.  In  this  extent,  the  pi  inciple  is  by  no  means  limited  to  convey- 
ances in  mortgage,  or  to  liens  arising  from  the  laying  out  of  money 
upon  the  land,  or  to  unequal  advances  of  money  by  the  respective  par- 
ties. Thus,  where  several  persons  agreed  to  drain  certain  overflowed 
lands,  and  a  deed  was  made  to  them  of  the  lands  in  consideration  of  a 
certain  sum  of  money,  and  they  proceeded  to  lay  out  money  in  prose- 
cution of  the  undertaking;  it  was  held,  that  the  parties  were  tenants 
in  common. (6) 

31.  Though  the  circumstance,  that  the  consideration  for  a  convey- 
ance is  advanced  unequally  by  the  several  grantees,  seems  to  have 
been  regarded  as  important  in  determining  the  nature  of  their  tenancy; 
yet  the  general  rule  is,  that  a  deed  given  to  several  persons,  and  not 
designating  their  respective  proportions,  will  pass  to  each  an  equal 
share  of  the  land.  The  amount  of  eon.sideration  paid  by  each  of  them 
cannot  be  shown  by  parol  evidence  ;  and  if  one  dissent  to  the  convey- 
ance, his  share  does  not  pass  to  the  other  grantees,  but  revests  in  the 
grantor.(7) 

82.  The  equitable  principle,  that  where  a  purchase  of  land  is  made 


(1)  Lit.  280-1  ;  Co.  Lit.  46  b  ;  Brotnpton 
V.  Ali<is.  2  Vtm.  556;  Cray  v.  Willis.  2  P. 
Wnis.  530  ;   Rex  v.  Williams,  Bunb.  342. 

(2)  Co.  Lit.  181  b. 

(3)  buub.  342  ;  Gould  v.  Kemp,  2  My.  i 
K.  309.  > 

Vol.  I.  37 


(4)  Pptty  V.  Stywanl,  1  Ab.  Eq.  201  ;  Rig- 
den  I'.  Vallier,  2"Ves  258. 

(5)  Aveling  t>.  Kiiipp,  I5  Ve.s.  441. 

(6)  Lake  v.  Craddoik,  3  P.  Wms.  153. 

(7)  Treudwell  v.  Bulkley,  4  Day,  395. 


578  JOINT  TENANCY.  [CHAP.  LIII. 

bj  two  persons,  with  a  view  to  expending  large  sums  of  money  in  the 
improvement  of  it,  the}'  shall  be  regarded  as  tenants  in  common,  has 
been  recognized  in  Pennsylvania.  But  the  inequality  of  the  sums,  paid 
by  the  respective  parties,  seems  to  have  been  considered  as  an  unimpor- 
tant circumstance;  and  it  is  intimated  that  the  principle  is  inapplicable, 
unless  the  case  is  clearly  shown  to  be  of  a  mercantile  nature,  and  con- 
nected with  a  partnership  in  busine.ss.(l)(a) 

(1)  Duncan  v.  Forrer,  6  Bin.  193. 


fa)  Under  the  insolvent  law  of  Massacliusetts,  if  a  surviving  partner  become  an  insolvent 
debtor,  resil  estate  purcliased  in  the  names,  with  the  funds,  and  for  the  business  of  the 
partners,  belongs  to  tlie  assignee,  who  may,  by  a  bill  in  equity,  compel  the  administrator, 
widow  and  lieirs  of  the  deceased  partner,  to  convey  to  the  plaintiff  such  deceased  partner's 
moiety  of  the  land,  for  the  benefit  of  partnership  creditors.  Burnside  v.  Merrick.  4  Met. 
537.  See  Tappan  v.  Bailey,  lb.  529.  In  Ohio,  in  case  of  a  partnership  in  the  business  of 
building,  &c.,  the  widow  of  a  deceased  owner  cannot  claim  dower  as  against  partnership 
creditors.     Sumner  v.  Hampson,  8  Ohio,  328. 

So,  in  Vermont,  it  is  held  that  real  estate,  belonging  to  partnership  funds,  should  follow 
the  same  law  of  distribution  in  Chancery,  which  is  applied  to  .r)ersonal  property.  Rice  v. 
Barnard,  20  Verm.  479.  The  same  rule  is  adopted  in  Tennessee.  Boyers  v.  Elliott,  7 
Humpli.  204. 

So,  in  New  York,  real  estate,  purchased  with  partnership  funds,  for  the  use  of  the  firm, 
although  the  legal  title  is  in  a  momljeror  memb'ers  of  the  firm,  is  in  equity  tlie  property  of  the 
firm,  for  the  payment  of  its  debts,  and  for  the  purpose  of  adjusting  the  equitable  claims  of 
the  co-partners  as  between  themselves.  Smith  v.  Tarlton,  2  Barb.  Ch.  336 ;  Buchan  v. 
Sumner,  2  Barb.  Ch.  165  ;  Delmonico  v.  Guillaume,  2  Sandf.  Ch.  366.  And  the  same  rule  ap- 
plies to  leasehold  estate.     Day  v.  Perkins,  2  Sandf.  Ch.  359. 

IJut  real  property  purchased  with  partnership  funds  for  partnership  purposes,  and  which 
remains  alter  paying  the  debts  of  the  firm,  and  adjusting  the  equitable  claims  of  the  different 
members  of  the  firm,  as  between  themselves,  is  considered  and  treated  as  real  estate. 
Buckley  v.  Buckley,  11  Barb.  43. 

Upon  the  death  of  one,  his  legal  title  passes  to  his  heirs.  Buchan  v.  Sumner,  2  Barb. 
Ch.  165.  And  the  surplus  remaining,  after  settlement  of  the  partnersliipaffiiirs,  is  treated  as 
real  estate.     lb. 

To  constitute  real  estate  partnership  property,  it  must  be  purchased  with  partnership 
funds,  and  have  been  used  for  partnership  purposes.     Cox  v.  McBurney,  2  Sandf  5fil. 

Wliere  land  is  purchased  in  the  name  of  one  partner,  and  not  used  for  partnership  pur- 
poses, the  other  partner  has  no  interest  therein,  as  survivor  of  the  grantee,  and  no  interest 
passes  to  his  assignee  in  bankruptcy.     lb. 

Though  such  land  was  paid  for  with  the  partnership  funds,  it  could  be  reached  only  by 
the  creditors  of  the  partner  not  named  in  tlie  deed,  who  were  such  at  the  time  of  the  con- 
veyance,    lb. 

Where  real  estate  was  originally  purchased  by  one  of  two  partners,  and  paid  for  out  of 
his  individual  funds,  and  the  only  interest  of  the  partnership  is  on  account  of  improvements 
made  with  its  funds;  the  actual  interest  of  such  partner,  at  least  his  individual  interest,  is 
liable  to  be  sold  on  execution.  But,  it  seems,  tlie  partnership  creditors  have  a  claim,  in 
equity,  to  have  the  whole  value  of  the  improvements  applied  to  their  debts,  in  preference  to 
the  separate  creditors  of  the  individual  partner;  the  equitable  interest  in  such  improve- 
ments, chargeable  vvitli  the  dents  of  the  partnership,  will  pass  under  an  assignment  made 
by  the  co-partners  for  the  benefit  of  the  partnership  creditors  ;  and  upon  such  equitable  inter- 
est, a  judgment,  obtained  by  a  separate  creditor  against  the  partner  who  purchased,  will 
not,  as  against  the  partnership  creditors,  be  a  lien.     Averill  v.  Loucks,  6  Barb.  19. 

In  Marj'land,  it  has  been  lield,  that,  in  the  absence  of  any  express  agreement  between 
partners,  giving  to  their  real  estate  tiie  character  of  personalty,  the  widow  of  a  deceased 
partner  may  claim  an  allowance  from  the  proceeds  of  partnership  lands  sold,  in  lieu  of 
dower,  if  the  partnership  was  solvent  at  the  lime  of  its  dissolution.  Goodburn  v.  Stevens, 
5  Gill  1 ;   1   Md.  Ch.  420. 

But  where  real  estate  liad  been  used  by  a  partnership  for  many  years  in  the  manufacture 
of  iron,  and,  upon  the  death  of  any  partner,  his  heirs  came  into  the  partnersliip,  and  there 
was  no  proof  of  any  articles  of  partnership ;  held,  the  whole  partnership  estate,  whether 
consisting  of  real  or  personal  property,  was  in  equity  a  consolidated  fund,  to  be  appro- 
priated primarily  and  exclusively  to  partnership  debts.     Goodburn  v.  Stevens,  5  Gill,  1. 

In  Louisiana,  where  an  immovable  is  purchased  by  a  commercial  partnership,  the  partners 


CHAP.  LIIL]  JOINT  TENANCY.  r>79 

3o.  While  the  case  of  joint  inortua^jves  has  been  held  in  Enfrland  an 
exception  to  the  rule  ol'  survivorsiiij) ;  in  this  eonntry,  where,  as  will 
be  seen  hereafter,  joint  tenancy  is,  for  the  most  j)art,  aliolished,  it  is 
held,  for  peeuliar  reasons,  still  to  subsist  between  parties  of  this  descrip- 
tion.    (See  ch.  'A,  sic.  20.) 

34.  Bodies  politic  or  corporate  cannot  bo  joint  tcnafrts  with  each 
other,  nor  with  individuals;  because  they  taicc  in  their  political  ca- 
pacity, and  are  seized  in  several  ri-^hts,  by  several  titles  and  capacities. 
But  the  mere  designation  of  a  grantee  by  his  corporate  character  will 
not  prevent  his  holding  as  joint  tenant.  Thus,  if  u  conveyance  is 
made  to  A,  bishop  of  B,  and  C,  to  have  and  to  hold  to  them  and  /heir 
heirs,  they  are  joint  tenants.  So,  the  rule  does  not  apply  to  the  con- 
become  joint  owners,  and  none  of  them  can  alienate  it  without  the  consent  of  the  rest. 
Weld  V.  Teters,  1  Lx  Ann.  K.  432. 

Wiiere  iniinoval.lo  property  belonf);inn:  to  a  partnership  is  sold  by  one  of  the  partners,  for 
a  consideration  which  enures  to  the  benefit  of  the  partnership,  and' the  other  partner,  ihough 
informed  of  the  sale,  makes  no  objection  to  it;  he  will  be  considered  as  having  ratitied  it.  lb. 
Where  real  estate  is  purchased  by  one  of  two  partners,  and  paid  for  out  of  his  indivi<lual 
fund.'),  and  improvements  are  made  thereon,  with  the  partnersliip  funds,  between  the  time 
of  the  givinp  of  a  judgment  by  one  of  the  partners  as  a  security  for  future  responsibilities, 
and  the  incurring  of  sucii  responsibilities  by  the  judgment  creditor;  the  equitable  in- 
terest of  the  other  partner  to  be  roinil)ursed  his  share  of  liio  funds,  applied  to  such  iniprove- 
,raent.s  is  prior  to  the  lien  of  the  judgment.     Averiil  v.  Louck.s,  6  Barb.  19. 

"Where  a  lease,  taken  by  a  partner,  demises  the  premises  to  liim  individually,  it  does  not 
belong  to  the  partnersliip  ;  and  parol  evidence,  that  it  was  executed  for  their  benefit,  is  in- 
admissible.    Otis  V.  Sill,  8  Barb.  102. 

So  it  is  held,  that  an  intention  to  bring  real  estate  into  partnersliip  must  be  manifested  by 
deed  or  writing  placed  on  record;  and  that  parol  evidence  is  inadmissible,  that  real  estate 
conveyed  to  two  per.sons,  as  tenants  in  common,  was  purchased  and  paid  for  by  tiiem  as 
partners,  and  was  partnership  property.     Rid;;way's,  ic,  3  Harris  177. 

\Vhere  an  entry  was  made  on  the  books  of  a  firm  by  one  of  the  partners,  charging  them 
witli  a  tract  of  land  valued  at  a  given  price,  as  debtor  to  him,  with  the  understanding 
that  it  should  become  partnership  property ;  held,  the  land  became  partnership  property, 
and  subject  to  the  prior  lien  of  partnership,  over  individual  debts.  Boyers  v  Klliott  7* 
Humph.  204. 

A  and  B,  partners  as  nursery-men,  owned  land  in  common,  which  was  planted  with 
young  trees,  and,  there  not  being  land  enough  for  their  business,  A  atjreed  to  the  plan'ing  of 
the  partnership  trees  on  his  own  land.  This  piece  A  morlu'aged;  the  mortgage  was  fore- 
closed, and  the  land  purchased  by  C  ;  at  which  sale  B  gave  public  notice  that  the  trees  be- 
longed to  the  firm,  and  that  he  owned  one  half  of  them.  B  tiled  a  bill  to  close  up  the  part- 
nership, and  also  prayed  for  a  decree  against  C,  declaring  that  half  of  the  trees  belonged  to 
him.  Held,  the  trees  were  the  property  of  the  firm,  and  liable  for  the  partnership  debts, 
and  for  any  balance  due  B  on  a  final  adjustment  of  the  partnership  accounts;  that  neither 
the  mortgagee  nor  the  purchaser  were  entitled  to  protection  as  bona  ^(/epurciiasers  without 
notice;  and  that  B  could  enforce  his  rights  a;.'ain.st  them,  to  the  same  extent  that  he  could 
have  done  against  A.     King  v.  Wilcomb,  7  Barb.  2G3.     See  Warren  v.  Daveis,  lb.  320. 

Where  land  was  purchased  by  a  partnership,  but  not  used  by  them  in  their  business,  and 
afterwards  sold  under  execution  against  one  of  the  partners:  and  it  did  not  appear  that  the 
purchaser  had  notice  that  it  was  partnership  property;  lield,  the  land  was  not  liable  for 
partnership  del>t3.     Buck  v.  Winn,  11  B.  Mon.  320. 

Articles  of  agreetricnt  were  entered  into  between  three  brothers,  which  recited,  that  they 
bad  previou.sly  agreed  to  be  equal  sharers  and  pnriners  in  the  product  of  llieir  own  labor  and 
that  of  thu.se  under  their  care,  and  to  bear  equally  the  expense  of  carrying  on  a  (arm,  raising 
stock.  pureliHsing  land,  negroes,  and  other  property,  whether  jointly  or  liidividuallv.  The 
articles  then  provided  for  the  continuance  of  the  partnership,  extended  it  to  all  bu.sine.^s  in 
which  either  of  them  might  engage,  and  stipulated  that,  if  either  of  them  died  belbro  a  final 
adjustment  and  division  of  the  property,  owned  by  them  jointly  or  individuallv,  the  survivor 
or  survivors  should  //f.V  or  inherit  all  the  property,  after  paying  all  debts  "against  all  or 
either.  Held,  lands  bought  on  jojnt  account,  or  in  the  name  of  the  brothers  individually, 
enured  to  the  benefit  of  the  partnership;  that,  if  one  of  thein  purcha.sed  lands  in  his  owtl 
name,  and  sold  them,  taking  a  note  to  himself  for  the  purchase-money,  such  note  vested  in 
the  partnership,  at  least  in  equity;  and  that,  upon  the  death  of  the'  payee,  the  surviving 
partners  might  file  a  bill  in  their  own  names  for  the  enforcement  of  the  lien.  Houston  v 
Stanton,  11  Ala.  412. 


580  JOINT  TENANCY.  [CHAP.  LIII. 

vcvance  of  a  chattel  real,  because  this  cannot  pass  in  succession. 
Hence,  in  case  of  a  lease  lor  years  to  a  bishop  and  a  natural  person, 
they  arc  joint  tenants.(l) 

'So.  An  alien  and  a  citizen  may  be  joint  tenants  ;  but  the  interest 
of  the  former  is  subject  to  escheat.(2) 

36.  Husband  and  wife,  being  considered  in  law  as  one  person,  can- 
not take  by  moieties,  as  joint  tenants,  each  an.  undivided  moiety  of  the 
whole;  but,  upon  a  conveyance  to  them,  each  has  the  erdirtty ;  they 
are  seized  ^^e?-  tout^  and  not  j^e/'  ??/?/,  and  the  husband  can  neither  forfeit 
nor  alien  the  estate.  It  will  be  seen  hereafter  that  this  rule  is  changed 
in  some  of  the  States.(o)(a) 

37.  Upon  this  principle,  where  a  conveyance  is  made  to  husband 
and  wife  and  a  third  person,  the  two  first  take  one  moiety,  and  the  last 
the  other. 

88.  The  doctrine  above  stated  was  held  in  a  very  early  case,  where 
a  husband,  to  whom  with  his  wife  an  estate  had  been  conveyed,  was 
attainted  and  executed  for  high  treason  in  the  murder  of  King  Eldward 
11.  The  heir  of  the  wife,  after  her  death,  claimed  the  land  by  petition 
to  Edward  III.,  against  a  stranger  to  whom  the  king  had  granted  a 
patent  therefor  ;  and  upon  scire  facias  had  judgment  in  his  favor.(4:) 

39.  The  consequence  of  this  principle  is,  that  the  husband  has  no^ 
power  to  convey  or  incumber  the  land,  so  as  to  bind  the  wife  after  his 
death.  Neither  of  them  can  sever  the  jointure,  but  the  whole  must  go 
to  the  survivor. (5) 

40.  The  same  principle  has  been  held,  where  the  limitation  was 
made  to  the  husband  and  wife,  and  the  longer  liver  of  them  ;  and,  after 
the  death  of  the  longer  liver,  to  their  right  heirs  forever.(6) 

41.  But  it  does  not  apply  to  a  conveyance  made  to  a  man  and  wo- 
man not  married  at  the  time,  but  who  intermarry  afterwards.  The 
tenancy  originally  created  is  not  defeated  by  their  subsequent  connec- 
tion.(7) 

42.  It  has  been  held  in  Connecticut,  that  where  husband  and  wife 
bring  an  action  to  recover  a  debt  due  her  before  marriage,  and  land  is 
set  off  to  them  on  execution  in  satisfaction  of  the  judgment,  they  be- 
come joint  tenants  of  such  land,  as  thc}^  were  joint  tenants  of  the  judg- 
ment. (8) 

43.  The  widow  of  a  joint  tenant  is  not  entitled  to  dower.  The  sur- 
vivor comes  in  by  a  paramount  title,  which  he  may  allege  in  pleading 
as  derived  directly  fi-om  the  grantor,  without  naming  his  companion. (9) 

44.  It  was  formerly  held,  that  where  lands  were  given  to  two  women 
and  the  heirs  of  their  two  bodies,  the  husband  of  one  of  them  deceased 
should  be  tenant  by  the  curtesy,  the  inheritance  being  executed.  Lord 
Coke  says,  that  Littleton  has  cleared  up  this  doubt,  by  showing  that  the 
inheritance  is  not  executed,  and  therefore  that  there  is  no  curtes3^(10) 

(1)  Co.  Lit.  190  a.  i  v.  King,  2  Black.  R.  1211  ;  Doe  v.  Parratt,  5 

(2)  Co.  Lit.  180  b,  n.  2.  j  T.  R.  652. 

(3)  Lit.    291  ;  Co.  Lit.  187  a;  ch.  54,  sec.  I      (6)  Green  v.  King,  2  Black.  R.  1211. 
15  ;   Harding  v.  Sprint'tT,  2  Shepl.  407  ;   Gib-  i      (7)  Co.  Lit.  187  b. 

son  V.  Zimmennaii,  12  Mis.  386.  I      (S)  Hanimick  v.  Bronson,  5  Day,  290. 

(4)  Co.  Lit.  187  a.  }      (9)  Lit.  \b  ;  Co.  Lit.  37  b. 

(5)  Back  V.  Andrews,  2  Vern.  120  ;   Green        (10)  Co.  Lit.  30  a;   183  a;  2  Cruise,  335. 

(a)  But  a  grant  to  husband  and  wife,  to  hold  as  tenants  in  common,  makes  them  such. 
Co.  Lilt.  187  b;  1  Steph.  315,  n. 


CHAP.  LIII.] 


JOINT  TKXANCY. 


591 


45.  One  joint  tenant,  as  has  been  already  intimated,  eunnot  charge  or 
incumber  the  estate  to  bind  the  other  who  survives  him  ;  as,  for  instance, 
by  a  rent-charge  or  recognizance.  So,  if  one  joint  tenant  suffers  a  judg- 
ment to  be  entered  up  against  him,  and  dies  beft^re  execution  of  it,  no 
execution  can  be  had  ;  but  an  execution  sued  hi  his  life  binch  tlie  sur- 
vivor. And  all  charges  bind  the  i>arty  himself  who  makes  them,  dur- 
ing his  life;  or,  if  he  survive  the  otlier,  absolutely.(l)((f) 

40.  An  exception  to  this  rule,  however,  is  a  lease.  A  joint  tenant 
may  bind  his  fellow  by  a  lease  for  years,  even  though  limited  to  com- 
mence only  after  his  own  death.  Even  in  such  case,  it  is  said  to  be  an 
immediate  disposition  of  the  land. (2)  But,  where  one  of  two  joint  ten- 
ants for  life  leased  for  years  his  own  moiety,  to  commence  from  the 
death  of  the  other,  and  the  other  moiety  by  the  same  instrument  to  com- 
mence from  his  own  death,  and  died  ;  held,  the  whole  was  void,  because 
he  had  no  power  to  lease  his  companion's  share,  and  the  lease  of  his 
own,  over  which  he  had  power,  was  not  to  commence  till  the  other's 
death.(3) 

47.  Although  a  joint  tenant  cannot  charge  or  incumber  the  estate, 
so  as  to  affect -the  right  of  survivorship,  yet  he  may  convey  his  whole 
interest;  and  in  this  way,  as  will  be  presently  seen,  sever  the  tenancy. 

48.  It  is  said,  that  in  consequence  of  the  intimate  union  of  interest 
and  possession  between  joint  tenants,  they  arc  obliged  to  join  in  many 
acts,  such  SiS  fealty,  in  England.  But,  on  the  other  hand,  there  are 
many  cases,  where  the  act  of  one  is  regarded  in  law  as  that  of  the  whole. 
Thus,  the  entry  of  one,  and  the  seizin  thereby  acquired,  enure  to  the 
benefit  of  all.  So,  in  case  of  a  joint  lease  by  them,  a  surrender  to  one 
is  a  surrender  to  both.  So,  if  one  commit  waste,  the  others  forfeit  the 
land,  though  he  alone  is  liable  to  treble  daraages.(4) 

■  49.  The  possession  of  one  joint  tenant  being  in  law  that  of  the  other 
also,  one  cannot  disseize  another  but  by  actual  ouster.  Thus,  in  Eng- 
land, a  fine  levied  by  one  of  the  whole  land  is  no  disseizin.(5) 

50.  Joint  tenants,  having  one  entire  and  connected  right,  must  in 
general  join  and  be  joined,  in  all  actions  respecting  the  estate.(6)(6) 


(1)  Co.  Lit.  184  n,  185   a;  Lit.   286;  Ld. 
Aberga%'eny's  case,  6  Rep.  78. 

(2)  Co.  Lit.  185  a;  Clerk  v.  Clerk,  2  Venn. 
323;  Gould  v.  Kemp,  2  My.  &  K.  310. 

(3)  TVhitlock   V.  Huiitwell,  2  Rolle's  Abr. 
89  ;  (Infra,  sec.  59.) 


(4)  Co.  Lit.  GT  b ;   Ih.  49  b  ;   Ford  v.  Grey, 
6  Mod.  44 ;   2  Cruise,  337  ;  2  Inst   302. 

(5)  Fisher  v.  Wi_ug,  1  Salk.  392 ;   Reading 
V.  Royston,  2,  423. 

(6)  4  Kent,  359. 


(a)  In  Connecticut,  a  joint  tenant  rnay  cliarge  his  sliaro  with  his  private  debts.  Reming 
ton  V.  Cady,  10  Conn.  44.  The  common  law  rule  that  no  title  to  dower  attaches  on  a  join 
seizin,  on  account  of  the  mere  possibility  that  the  estate  may  be  defeated  by  survivorship,  doe^ 
not  prevail  in  North  Carolina,  South  Carolina,  Indiana  and  Kentucky,  or  probably  any  othe'' 
States,  wiiere  the  jus  accrescendi  is  abolished.  Lit.  sec.  45  ;  Ind.  L.  183,  p.  290  ;  Heed  v 
Kennedy,  2  Strobh.  67;  Weir  v.  Tate,  4  Ired.  2G4;  3  Blackf.  13,  n.;  Dnvis  v.  Lny::in,  9 
Dana,  180  ;  4  Kent,  37,  n. ;  Mayburry  v.  Brien,  15  Pet.  21,  See  Menifee  v.  Menifee,  3  Eng. 
9  ;  supra,  ch.  1 1. 

Where  .\  and  B  jointly  and  equally  erected  houses  in  a  block,  afterwards  made  a  parol 
partition,  and  each  occupied,  sold  and  received  llio  price  of  liis  own  portion  ;  held,  there 
was  not  sufficient  proof  of  sole  seizin  to  give  a  title  to  dower.  Ilainbliii  v.  Bank  Ac,  1 
Appl.  66. 

(b)  In  Mississippi  it  is  expressly  provided,  that  in  real  and  mixed  actions,  a  defendant 
may  plead  in  abatement,  that  another  person  holds  the  hind  jointly  with  liimself.  Missi.  Rev. 
C.  116.  So  in  Virginia.  1  Vir.  Rev.  C.  237.  In  Riiode  island,  a  suit  for  the  land  in.iy  be 
brought  by  all  the  tenants,  or  any  two  of  them,  or  one  alone.     R.  I.  L.  208.     In  Connecti- 


582  JOINT  TENANCY.  [CHAP.  LIII. 

51.  Some  other  incidents  of  joint  tenancy,  common  to  this  estate  and 
to  tenanc}^  in  common,  will  be  considered  hereafter. 

52.  It  is  said,  that  a  joint  tenancy  may  be  severed,  by  the  destruction 
of  any  of  its  constitaent  unities,  except  that  of  time,  which,  as  it  relates 
golely  to  the  commencement  of  the  estate,  cannot  be  affected  by  any 
subsequent  transaction. (1) 

58.  A  joint  tenancy  is  destroyed  by  destruction  of  the  unity  of  interest, 
which  may  take  place  either  by  act  of  parties  or  act  of  la\v.(2) 

5-i.  It  has  been  seen,  that  there  may  be  joint  tenants  for  life,  remain- 
der to  the  heirs  of  one  of  them  ;  or,  m  other  words,  that  one  joint  ten- 
ant may  have  a  life  estate  and  the  other  a  fee.  The  whole  interest 
being  created  at  one  time,  the  fee-simple  cannot  merge  the  jointure 
which  had  no  previous  existence.  But,  it  is  otherwise,  where  one  of 
several  joint  tenants  for  life  takes  a  conveyance  of  the  fee,  after  the 
creation  of  the  original  joint  estate  ;  the  jointure  is  severed  by  a  merger 
of  the  life  estate  in  the  fee-simple.  It  is  said,  that  if  such  tenant  for  life 
might  purchase  the  reversion  in  fee,  and  still  retain  his  life  estate,  he 
would  have  power  to  convey  the  reversion  by  itse'lf,  which,  it  has  been 
seen,  the  law  does  not  allow,  where  the  two  estates  are  joined  by  the 
original  limitation. {S)(ci) 

55.  So,  where  there  are  joint  tenants  for  life,  and  a  new  conveyance 
in  tail  is  made  to  them ;  the  joint  tenancy  is  severed.(4) 

56.  So  a  descent  of  the  fee  to  one  of  two  joint  tenants  for  life  severs 
the  joint  tenancy.  Thus,  where  one  devised  to  his  two  youngest  sons 
for  life,  and  afterwards  the  reversion  came  to  one  of  them  by  descent 
from  the  eldestson  ;  held,  a  severance  of  the  jointure.(5)  Itwouldseem 
from  analogy  to  the  distinction  stated  in  sec.  54,  that  if  the  devise  were 
made  for  life  to  the  eldest  son  and  another,  as  the  reversion  and  life  es- 
tate must  come  to  the  former  by  the  same  event,  the  death  of  the  testa- 
tor, the  joint  tenancy  for  life  would  still  exist. 

57.  Another  mode  of  severance  is  by  destroying  the  unity  of  title. 
Thus,  if  one  joint  tenant  conveys  his  interest  to  a  third  person,  inas- 
much as  this  person  claims  title  by  conveyance  from  the  joint  tenant, 
and  the  remaining  joint  tenant  claims  title  by  the  original  conveyance, 
the  jointure  is  severed. (6) 

58.  A  conveyance  by  one  joint  tenant  of  his  interest  in  the  land  de- 
stroys the  unity  of  j^ossession  as  well  as  of  title.  The  remaining  joint 
tenant  and  the  grantee  have  several  freeholds. 

59.  A  lease  for  life  by  one  joint  tenant  operates  as  a  severance.  And 
the  severance  applies  to  the  reversion,  as  well  as  the  particular  estate. 
A  lease  for  years  operates  as  a  severance  pro  tanto.  So  an  under-lease 
by  one  of  two  joint  tenants  for  years.(7) 

(1)  2  Cruise,  338. 

(2)  lb. 

(3)  Co.  Lit.  182  b;  Wisecot's  case,  2  Rep. 
80. 

(4)  Co.  Lit.  182  b. 

cut,  it  has  always  been  tlie  practice  for  one  joint  tenant  to  sue  alone.  1  Swift,  102.  In 
Mississippi,  one  joint  tenant  may  alone  maintain  a  merely  possessory  action  for  the  joint  pre- 
mises, the  possession  of  one  being  in  law  the  possession  ofall.    Rabe  v.  Fyler,  10  S  &  M.  440. 

So,  one  may  maintain  forcible  entry  and  detamer,  to  recover  possession,  tlie  title  not  being 
involved.     lb. 

(a)  This  distinction  is  analogous  to  that  above  mentioned,  in  regard  to  the  destruction  of 
contingent  remainders. 


(5)  Robert,  kc,  2  And.  202. 
(G)  Lit.  292. 

(7)  Lit.  302;  Co.  Lit.  192  a.     (Sy^m,  sec 
46.) 


CnAP.  LIIL]  JOINT  TENANCY.  583 

60.  It  has  been  held,  in  equity,  tliat  a  joint  tenancy  in  a  trust,  term 
may  be  severed  by  a  mortgatfo  made  by  one  of  llic  tenants.  This  is 
contrary  to  the  general  jirinciple,  tliat  no  cJiarge  upon  the  estate  shall 
interfere  with  the  right  of  survivorship.(U 

61.  A  conveyance,  which  is  in  law  invalid,  will  not  operatic  to  sever 
a  joint  tenancy,  even  in  equity  ;  as,  for  instance,  a  conY<r>-nnce  made  to 
the  wife  of  the  tenant,  though  immediritely  before  Ws  death,  and  for  the 
purpose  of  | providing  for  her.(2) 

62.  Whether  mere  articles  of  agreement  mav  in  equity  operate  as  a 
severance  of  joint  tenancy,  seems  to  be  a  doubtful  point,  though  the 
prcvaiHng  opinion  is  that  they  may.(8)(a)  But  when  made»l)y  an 
infant,  they  do  not  have  this  effect.  Being  in  their  nature  avoidable 
by  the  party,  it  is  in  the  discretion  of  the  court  of  equity  either  to  give 
or  refuse  its  assistance.  It  may  model  such  a  contract  at  pleasure. 
And,  in  the  view  of  equity,  a  surviving  joint  tenant  is  not  considered 
as  a  mere  volunteer,  but  as  claiming  by  title  paramount,  like  the  issue 
under  an  entailment.  If  -the  other  tenant  had  died  first,  the  infant 
might  have  avoided  his  act,  and  claimed  by  survivorship.  Hence,  to 
^et  up  this  act  as  a  severance,  would  be  manifestly  unequal  and  unjust. 
Upon  these  grounds,  articles  of  agreement,  by  which  a  female  infant, 
upon  her  marriage,  covenanted  with  her  proposed  husband  and  trus- 
tees to  settle  her  lands,  held  in  joint  tenancy,  upon  the  husband,  were 
held  not  be  valid  in  equity  against  the  claim  of  the  surviving  joint 
tenant.(4) 

63.  A  joint  tenancy  cannot  be  severed  by  devise.{b)  A  devise  takes 
effect  only  by  the  death  of  the  testator,  which  also  vests  the  title  by 
survivorship  in  the  remaining  tenant;  and,  the  two  claims  being  con- 
current in  time,  the  law  gives  priority  to  the  latter.(5) 

64:.  If  a  joint  tenant  makes  a  will,  and  then 'becomes  solelv  seized  by 
survivorship,  the  will  does  not  operate  upon  the  title  so  acquired  with- 
out republication. (6) 

155.  A  severance  may  be  effected  by  the  alienation  of  one  joint  tenant 
to  another.  It  is  said  that  this  should  be  done,  in  the  form  of  a  release, 
because  both  are  actually  seized  of  the  estate  before.(7) 

66.  If  there  are  three  joint  tenants,  and  one  of  them  releases  to  one 
of  his  companions,  the  latter  holds  one-third  of  the  land  in  common, 
and  he  and  the  other  tenant  hold  two-thirds  as  joint  tenants.  But  if 
one  release  to  all  the  others,  they  hold  in  law  under  the  original  con- 
veyance, and  not  under  the  release;  and  therefore  remain  joint  tenants 
as  before.(8) 

67.  By  accepting  a  release  from,  his  companion,  a  joint  tenant  rccog- 

(1)  York  v.  Stone,  1  Abr.  Eq.  293  ;  1  Salk.  ^      (5)  Lit.  287;    Co.   Lit.    185  b;     Swift    v. 
158.  i  Roberts,  ]  Bl.  Rep.  476. 

(2)  Mcyse  v.  Giles.  Free,  in  Ciia.  1-24.  |      (6)  4  Kent,  3G0;  Swift  v.  Roberts,  3  Burr. 

(3)  Musgrave    v.   Dashwood,    2  Vern.  63;     1483;   Anibl.  617. 
Hinton    v.    llinlon,    2  Ves.    634;   Rigdeu  v.  i      (7)  2  Cruise,  342. 
Vallier,  2  Vcs.  jr.  257.  (8)  Lit.  304;  2  Cruise,  342. 

(4)  May  v.  Hook,  Go.  Lit  246  a,  n.  1 ;  Durn- 
ford  V.  Lane,  1  Bro.  112.  I 


(a)  A  and  B  being  interested  in  a  fund  as  joint  tenants,  A,  by  letter  to  B,  engages  to  se- 
cure to  Ilia  family,  in  any  way  B  may  desire  by  bis  will,  a  moiety  of  the  fund.  Held,  a 
severance  of  the  joint  tenancy.     Gould  v.  Kemp,  2  Mylne  ^t  K.  30'!. 

(Z»)  An  ancient  statute  in  South  Carolina,  not  now  in  .''orce,  provided  otherwiao. 


584 


TENAXCY  IN  COMMON. 


[CHAP.  LIT. 


nizes  the  validity  of  any  previous  charge  upon  the  estate  made  by  the 
releasor,  which  he  might  have  avoided  under  the  title  by  survivorship. 
Thus,  if  one  joint  tenant  grant  a  rent-charge  from  the  "land,  and  after- 
wards release  to  the  other  and  die ;  although,  as  between  the  two  joint 
tenants  themselves,  the  releasee  holds  not  by  the  release  but  by  the 
original  joint  conveyance,  yet,  as  to  the  grantee  of  the  rent,  he  chiims 
under  the  release,  and  therefore  his  title  is  subordinate  to  the  rent.(l) 

68.  JoinL  tenants  may  make  a  severance  by  voluntary  partition. 
But  such  partition  must  be  by  deed.(2) 

69.  At  common  law,  one  joint  tenant  could  not  compel  another  to 
make  partition.  But  by  Statutes  31  Hen.  VlII,  c.  1,  and  82  Hen. 
VIII,  c.  32,  joint  tenants  are  enabled  to  make  partition  of  their  estates 
by  means  of  compulsory  legal  process,  called  a  writ  of  partition.  And 
by  St.  b  and  9  Wm.  Ill,  c.  31,  this  process  is  much  simplified.  The 
methods  of  obtaining  partition  in  the  United  States,  which  are  sub- 
stantially the  same  in  relation  to  joint  tenants  and  tenants  in  common, 
will  be  particularly  considered  hereafter. 


CHAPTER  LIV. 


TENANCY  IN  COMMON. 


1.  Three  forms   of  joint  ownership  in  Eng- 

land. 

2.  Co-parcenary;  obsolete  in  the  U.  S. 

5.  Tenancy  in  common,  what. 

6.  Joint   tenancy  favored  in  England,  but 

discountenanced  in  the  U.  S. ;  statu- 
tory provisions  changing  it  into  ten- 
ancy in  common. 

15.  Exceptions — husband  and  wife. 

20.  Joint  mortgagees. 


25.  Trustees  and  executors. 

26.  Statutes  apply  to  vested  estates. 
30.  Legislative  grants. 

34.  Estate  in  common  subject  to  the  same 
rules  with  a  several  estate. 

37.  But  a  tenant  cannot  convey  by  metes 
and  bounds. 

47.  General  rigiits  and  remedies  of  tenants 
in  common,  &c. 


1.  By  the  English  law,  as  has  been  stated,  (ch.  53,)  there  are  three 
modes  in  which  several  persons  may  own  real  estate  together;  viz: 
joird  tenancy^  co-parcenary  and  tenancy  in  common.  The  first  of  these 
has  been  already  considered. 

2.  The  second  mode  of  joint  ownership — co-parcenary — always  arises 
from  descent.  At  common  law,  it  took  place  when  a  man  died  seized 
of  an  inheritance,  and  left  no  male  issue,  but  two  or  more  daughters, 
or  other  female  representatives.  Co-parceners  have  distinct  estates, 
with  aright  to  the  possession  in  common,  and  each  may  alienate  her 
share.  So  one  may  release  to  another,  with  the  same  effect  as  in  case 
of  joint  tenancy. (3) 

3.  Co-parceners,  like  joint  tenants,  have  a  unity  of  title,  interest  and 
possession.  They  are  also  said  to  be  seized  per  my  etper  tout.  But 
still  there  is  no  survivorship  between  them,  and- either  may  devise  her 
estate.(4)(a) 

(1)  Co.   Lit.  185  a;   Abergaveny's  case,  6  1      (3)  4  Kent,  364. 
Rep.  78  b.  (4  4  Kent,  364. 

(2)  2  Cruise,  343.  I 


(a)  Parceners  continue  to  hold  hy  descent,  even  after  the  co-parcenary  is  dissolved  by  par- 
tition.    Doe  V.  Dixon,  5  Ad.  k  Ell.  834. 


CHAP.  LIV.]  TENANCY  IN  COMMON.  585 

4.  IMie  common  Liw  Icaniini;-  of  piirtilion,  in  respect  to  parceners, 
is  cnlletl,  by  Lord  Coke,  a  cunuiiKj  IcuruiiKj^  and  is  replete  with  subtle 
distinctions  and  antiquated  erudition.  But  in  the  United  States,  as 
lands  descend  to  all  the  children  equally,  whether  male  or  female,  the 
common  law  definition  of  co-|)arcenary  has  become  inapplici\ble  ;  and 
the  English  doctrines  in  relation  to  it  are  also  of  little  i-ntportance,  be- 
cause the  ownership  of  joint  heirs  is  in  some  of  the  States  expressly 
declared  to  be,  and  in  all  of  them  is  in  effect,  a  tenancy  in  conim(;n.(a) 
The  technical  distinction  between  eo-pareenary  and  estates  -in  common 
may  be  considered  as  essentially  extinguished  in  the  United  States.(l) 
The  only  peculiar  incident  of  the  former  is,  that  partition  may  be 
made  among  parceners  by  the  probate  courts,  to  which  the  settlement 
of  the  estates  of  deceased  persons  appertains.(2) 

5.  Tenancy  in  common,  by  the  English  law,  is  where  two  or  more 
persons  hold  lands  and  tenements  by  several  titles,  not  by  a  joint  title, 
and  occupy  them  in  common.  The  only  unity  required  between  such 
tenants  is  that  of  possession.  It  has  already  been  seen,  (ch.  58,)  that  a 
tenancy,  which  would  otherwise  be  a  joint  tenancy,  for  the  want  of 
unity  in  interest,  title  or  time,  is  held  a  tenancy  in  common. 

6.  The  common  law  favored  title  by  joint  tenancy,  by  reason  of 
the  right  ot  survivorship.  Its  policy  was  averse  to  the  division  of 
tenures,  because  it  tended  to  multiply  the  feudal  services,  and  weaken 
the  efficacy  of  that  connection.  But  it  has  been  said,  that  the  reason 
of  that  policy  had  ceased  with  the  abolition  of  tenures,  and  that  even 
the  courts  of  law  were  no  longer  inclined  to  favor  joint  tenancy  ;  and 
it  has  been  seen,  (ch.  53,)  that  survivorship  is  discountenanced  by  a 
court  of  equity.  -In  the  United  States,  where  feudal  tenures  are 
unknown,  upon  the  ground  that  tenancies  in  common  are  more 
beneficial  to  the  commonwealth  and  consonant  to  the  genius  of  repub- 
lics,(3)  the  old  English  doctrine  upon  this  subject  has  been,  not  par- 
tially qualified  or  subjected  to  occasional  exceptions,  but  actually 
reversed  in  neaily  all  the  States.  In  England,  where  several  persons 
own  land  together,  they  are  joint  tenants,  unless  there  is  some  special 
reason  for  a  diiferent  ownership;  but  in  the  United  States,  in  the 
absence  of  such  reason,  they  are  tenants  in  common.  Chancellor  Kent 
remarks,(4:)  that  in  this  country  the  title  by  joint  tenancy  is  very  much 
reduced  in  extent,  and  the  incident  of  survivorship  still  more  exten- 
sively destroyed. (i)  Inasmuch  as  survivorshij)  is  the  only  important, 
practical  incident,  which  distinguishes  joint  tenancy  from  tenancy  in 
common,  it  is  a  question  of  no  great  consequence,  whether  one  or  the 
other  of  these  foi'ms  is  adopted  in  changing  the  old  law.(c) 

(1)  4  Kent,  364.  I      (3)  Shaw  v.  Hearsey,  5  Mass.  622. 

(2)  1  Swift,  104.     See  Drury  v.  Drury,  1        (4)  4  Kent,  361. 
Rep.   in  Ciiy.    26;   O'Bennon   v.  lloberts,   2 

Dana,  54 ;  N.  H.  Rev.  St.  242.  I 


(a)  It  is  recopnized  by  name  in  some  of  the  States.  Prince,  541  ;  Ky.  Rev.  L.  660.  In 
Maryland,  the  cliildren  of  parents  who  die  intestate,  seized  in  fee  of  lands,  kc,  take  as  co- 
parceners, and  are  so  treated  by  the  act  of  1820,  c.  191,  sec.  5.  IloiVar  v.  Dement,  5  Gill, 
132. 

{b)  In  the  Plymouth  Colony,  in  1643,  it  was  enacted  by  the  general  court,  that  surTivor- 
ship  should  not  apply  to  joint  tenants.     4  Kent,  362,  n. 

(c)  It  seems,  a  limitation  may  be  such  as  to  con.stilute  tenants  in  common,  with  benefit  of 
survivorship.    Doe  v.  Abcy,  1  M.  &  S.  428.    In  South  Carolina,  survivorship  is  not  abolished, 


586  TEXAXCT  IN  COMMOX.  [CHAP.  LIT. 

7.  In  Indiana. (1)  joint  tenancies  are  changed  into  tenancies  in  com- 
mon. In  South  Carohna,(2)  the  death  of  one  joint  tenant  operates  as 
a  severance,  and  his  estate  passes  to  his  heirs,  as  in  case  of  a  tenancy 
in  common. 

8.  In  tlie  States  of  Maryland  and  New  Jersey,  an  estate  in  joint 
tenancy  can  be  created  only  by  an  express  declaration  that  the  land  is 
to  be  owned  in  this  way. 

9,  In  New  York,  Delaware,  Michigan,  Arkansas,  Illinois,  Wisconsin 
and  Missoiiri,  an  exception  is  made  from  the  same  provision  in  regard 
to  executors  and  trustees.  In  Massachusetts,  Vermont  and  Penn- 
sylvania, trustees  alone.  In  some  of  these  States,  the  phraseology  is, 
that  a  joint  tenancy  shall  not  arise,  unless  it  is  declared  that  the  par- 
ties are  to  hold  as  joint  tenants,  "and  not  as  tenants  in  common  ;"  but 
probably  no  particular  significancy  is  to  be  attached  to  this  last 
expression. 

10,  In  Tennessee,  Mississip])i,  Illinois  and  Alabama,  survivorship 
between  joint  tenants  is  expressly  abolished  by  statute.  In  Connecti- 
cut, the  doctrine  was  exploded  in  an  early  decision,  and  the  law  has 
never  been  since  contradicted. 

11.  In  Vermont,  Massachusetts, (a)  Maine,  New  Hampshire  and 
Ehode  Island, (6)  there  must  be  express  words,  or  an  intention  to  that 
effect,  to  create  a  joint  tenancy ;  and,  in  Vermont,  the  statute  is  de- 
clared applicable  to  estates  previously  created,  as  well  as  those  which 
might  arise  subsequently.  The  same  provision  is  made  in  Wisconsin. 
12.  In  Massachusetts,  Maine,  Wisconsin,  Indiana  and  Michigan, 
another  exception  from  the  general  provision  is  made  in  relation  to 
mortgages;  and  in  Ma.ssachu setts,  Michigan  and  Vermont,  convQj- 
ances  to  husba7id  and  wife.  While  in  Rhode  Island,  on  the  contrary, 
conveyances  to  husband  and  wife  are  expressly  declared  not  to  con- 
stitute an  exception. (3)(c) 

13.  In  North  Carolina,(4)  there  is  no  survivorship  between  joint  tenants, 
except  in  the  case  of  partners  in  business,  and  here  only  for  the  pur- 
pose of  settling  the  joint  concern.  After  such  settlement,  the  survivor 
pays  over  the  balance  due,  to  the  representatives  of  the  deceased  part- 
ner. 

(1)  Ind.  R.  L.  290;  Rev.  Sta.  201.  I  Aik.  Dig.  129;  1  Smith's  St.  136-7;  Verm. 

(2)  1  Brev.  Dig.  435.  L.  177;  E.  T.  L.  208-9;  Purd.  417;   4  Kent, 

(3)  Phelps  V.  Jepson,  1   Root,   48,   A.  D.  361;  Mich.  Rev.  St.  258  ;  Ark.  Rev.  St.  189; 
1769:  1  Svvifr,  104;   1  N.  T.  Rev.  St.  727  ;  Me.   Rev.    St.    372;    Verm.    Rev.   St.   310; 
Md.  L.  1822,  98  ;    IN.  J.  L.  556;  Del.  St.  Kinsley  v.  Abbott,  1  Appl.  430;  Wise.  Rey. 
1829,  167;  Rev.    Sts.   286;   Mass.   Rev.    St.  Sts.,  eh.  56,  sec.  44;  Ind.  Rev.  Sts.  201. 
406;  Illin.  Rev.  L.  130,  474;   Misso.  St.  119;        (4)  1  N.  C.  Rev.  St.  258. 


but  joint  tenants  may  devise  their  estates.  4  Kent,  361  n.  In  Delaware,  persons  occupying 
vacant  land  in  mixed  pqsse.ssion,  prior  to  the  act  of  1843,  become  tenants  in  common  under 
that  act.     Tubbs  v.  Lynch,  4  Harring.  521. 

(a)  It  shall  "  manifestly  appear  from  the  tenor  of  the  instrument."  Substantially  the 
same  language  in  Maine  and  New  Hampshire. 

(6)  Words  "  clearly  and  manifestly  showing  otherwise." 

(c)  A  conveyance  to  husband  and  wife  jointly,  their  heirs  and  assigns  and  the  survivor  of 
them,  his  or  her  separate  heirs,  &c.,  gives  them  a  joint  estate  while  she  lives,  and  upon  her 
death  vests  the  fee  in  him.  Lewis  v.  Bnldwin,  11  Ohio,  352.  In  case  of  a  mortgage  to  A 
and  B.  if  A  dies,  B  is  entitled  to  the  mortgage  and  notes.  If  A  has  collected  a  part  of  the 
money,  and  dies  insolvent,  B  may  collect  the  balance,  and  retain  enough  for  his  own  in- 
demnity, as  an  equal  owner.     1  Appl.  430. 


CHAP.  LIV.]  TENANCY  IN  COMMON.  587 

14.  In  Virginia  and  Kentucky, (1)  it  is  jirovided,  that,  of  wliatever 
kind  the  estate  may  be,  it  shall  not  pass  to  survivors,  l)ut  shall  descend, 
may  be  devised,  and  shall  be  subject  to  debts,  charges,  curtes)-  and 
dower,  and  be  considered  to  every  other  intent  and  purpose  in  tiie 
same  manner  as  if  it  had  been  a  tenancy  in  common. (a) 

15.  From  this  recapitulation  of  the  statutory  provisioiR  in  the  seve- 
ral States,  it  appears  that,  in  some  of  them,  joint  tenancy  has  been  un- 
qualifiedly abolished,  while  in  others  it  is  still  retained  in  certain  enu- 
merated cases,  tor  which  it  is  peculiarly  adapted ;  as  in  case  of  husband 
and  wife,  of  executors  and  trustees,  and  of  mortgagees.  Massachusetts, 
Wisconsin  and  Michigan,  are  the  only  States  in  which  conveyances  to 
husband  and  wile  are  expressly  excepted  from  the  general  provision  of 
the  statute.(Z>)  Khode  Island  is  the  only  one  in  which  they  are  ex- 
pressly included.  But  the  prevailing  rule  of  American  law  is,  that  the 
case  of  husband  and  wife  is,  bi/  implication,  not  included  in  the  general 
provisions  upon  this  subject.  The  reasons  for  making  this  exception, 
equally  applicable,  it  seems,  in  all  the  States,  are  thus  stated  by  the 
court  in  Virginia.(2) 

16.  Though  a  jointure  might  be  destroyed  by  various  acts,  yet,  at 
the  common  law,  there  was  no  mode  by  which  a  partition  might  be 
compel.led.  To  remedy  this  inconvenience,  the  Statutes  of  31  and  32 
Henry  VIII  were  passed.  These  speak  of  o// joint  tenants;  but  they 
have  never  been  supposed  to  reach  the  case  of  husband  and  wife.  All 
the  books  agree,  not  only  that  husl5and  and  wife  cannot  enforce  parti- 
tion, but  that  they  cannot  make  it  even  by  mutual  consent.  It  is  a 
sole,  and  not  a  Joint  tenancy.  They  have  no  moieties.  Each  holds  the 
entirety.  Notwithstanding  any  act  of  the  husband,  the  wife,  upon  his 
death,  takes  the  whole  ;  not  by  survivorship,  which  implies  an  accession 
of  something  not  owned  before,  but  by  virtue  of  the  original  limitiition  ; 
and,  as  if  the  land  had  been  given  to  them  during  the  lives  of  both, 
and,  after  the  death  of  either,  to  the  survivor  alone.  The  expressions, 
jointure,  joint  tenuncij,  &c.,  are  indeed  often  applied  to  the  ownership  of 
husband  and  wife ;  iDut  only  because  these  words  approach  nearer  to  a 
description  of  the  estate  than  any  others  which  could  be  used  without 
circumlocution.  This  doctrine  is  said  to  have  been  settled  for  ages.(3) 
The  law  stood  thus  when  the  Virginia  act  was  passed,  being  substan- 

•stially  a  copy  of  the  English  statutes;  and  this  act  must  be  supjjosed 
to  have  recognized  the  established  principle  in  relation  to  husband  and 
wife.  Hence,  when  it  provides,  that  upon  the  death  of  joint  tetmnts, 
their  share  shall  not  accrue  to  the  survivors;  the  case  of  husband  and 


(1)  1  Vir.  Rev.  C.  31 ;  2  Kj.  Rev.  L  876-7. 

(2)  Tliortiton   v.   Thornton,  3    Rand.    183. 
See  Raia'a  Outl.   170;  Warrington  v.  War- 


rinprton,  2    Hare,  54.     Moore  v.    Moore,    12 
B.  Mon.  651. 
(3)  5  T.  R.  652. 


(a)  But  It  has  been  held  in  Kentucky,  that  a  conveyance  to  trustees,  in  pursuance  of  a 
previous  statute,  and  fur  the  benetit  of  a  literary  seminary,  vests  tiie  title  in  tiiem,  and 
their  .successors,  though  not  named.     Churchill  v.  Grundy,  5  Dana.  99. 

{b)  In  Ohio,  a  decision  has  been  made  to  tlie  same  eOect.  2  Ohio,  306.  In  case  of  a  con- 
veyance to  husband  and  wife,  he  may  brinp  a  .suit  for  the  land  alone.  Jackson  v  Leek,  19 
^\end.  339.  Conveyance  to  A  B,  and  C  D,  and  K  his  wife,  and  their  heirs,  as  tenants  ia 
common,  not  jomt  tenants.  A  B  takes  one  moiety ;  G  D  and  E  tlie  other.  Johnson  v. 
Hart,  6  Watts  A  S.  319.  Land  was  conveyed  to  a  husband  and  wife  jointly,  which  was 
owned  by  the  wife  equitably,  and  tho  legal  title  of  which  was  in  her  guardian.  Held,  ou 
the  death  of  the  wife,  the  husband  was  not  entitled  to  the  land.  Mooro  v.  Moore,  12  B. 
Mon.  651.  ' 


588 


TENANCY  IN  COMMON. 


[CHAP.  LIV. 


wife  is  not  included  in  this  clause,  both  because  they  are  not  joint 
tenants,  and  because  between  them  there  is  nothing  which  can  accrue 
from  one  to  the  other.  Nor  does  the  clause,  "  whether  thej  be  such  as 
might  have  been  compelled  to  make  partition  or  not,"  vary  this  con- 
struction ;  because  this  clause  is  satisfied  by  the  case  of  joint  tenancy 
in  personal  property,  or  between  a  man  and  woman  who  afterwards 
intermarry,  of  which  there  could  be  no  partition  by  law  ;  and  this  ap- 
plication is  favored  by  the  mention  of  executors,  &c.  So  the  clause 
"  of  whatever  kind  the  estate  holden  be,"  means  merely  to  describe 
the  quantity  of  the  estate,  as  in  fee,  for  life,  &c. ;  not  the  qualiti/^  which 
had  been  already  sufficiently  expressed  by  the  \fovds  joint  tenants.  The 
words,  "  if  partition  be  not  made"  in  the  parties'  lifetime,  &c.,  imply 
that  the  case  is  one,  where  partition  might  be  made,  which  is  not  the 
case  as  between  husband  and  wife  ;  not  on  account  of  this  particular 
relation,  but  because  each  owns  the  whole  estate.  The  statute  intended 
to  prevent  the  right  of  the  deceased,  which  might  have  been  disposed 
of  in  his  life,  from  accruing  to  the  survivor,  and  to  devolve  it  upon  the 
representative  of  the  former ;  not  to  give  a  new  right  to  his  represen- 
tatives, which  he  never  had.  But  a  purchaser  from  the  husband  would 
not  hold  as  against  the  wife.  A  purchaser  from  a  mere  joint  tenant 
would  hold  against  the  survivor ;  and,  therefore,  there  was  no  necessity, 
to  provide  for  his  protection.  But  if  the  act  applies  to  husband  and 
wife,  the  heirs,  &c.,  of  the  former  are  provided  for,  while  a  purchaser 
from  him  is  not.  This  constructi(3n  would  vest  in  husband  and  wife 
new  rights,  and  take  away  a  vested  right  from  the  other ;  and  such 
construction  ought  not  to  be  given,  when  another  may  be,  which  will 
only  tend  to  preserve  existing  rights  by  repealing  a  rule  of  law,  which, 
if  unrepealed,  might  give  such  rights,  in  one  event,  to  another. 

17.  The  same  principle  has  been  recognized  in  Kentucky,  Massachu- 
setts, Maryland  and  New  York,  upon  substantially  the  vsame  grounds.(l) 

18.  It  has  been  said,  that  husband  and  wife  holding  lands  by  a  con- 
veyance to  them  must  both  join  in  a  conveyance;  that  they  are  both 
necessary  to  make  one  grantor  ;  and  the  deed  of  either  without  the 
other  is  merely  void. (2)  It  is  to  be  observed,  however,  in  qualification 
of  this  remark,  that  the  husband,  of  course,  has  the  same  right  in  the 
wife's  interest,  as  husband,  which  he  has  in  any  other  estate  belonging 
to  her ;  and  may  therefore  convey  or  mortgage  it  for  his  own  life  (there- 
being  children.)  But  the  land  cannot  be  taken  upon  an  execution 
against  him. (3) 

19.  Conveyance  to  a  husband  for  the  joint  benefit  of  himself  and  his 
wife,  but  with  no  words  limiting  a  trust  for  her  separate  use,  though 
expressly  excluding  him  from  power  to  sell.  Held,  the  land  might  be 
taken  by  creditors  of  the  husband  for  his  life.(4) 

19  a.  Where  a  wife  in  her  own  right,  and  another  person,  whose 
interest  was  purchased  by  the  husband  in  his  own  right,  held  the 
equitable  title  to  a  tract  of  land,  by  warrant,  survey  and  possession, 
and  a  patent  issued  for  the  whole  tract  to  the  husband  and  wife; 
held,  though  under  the  patent  the  husband  and  wife  each  took,  at  law, 


(1)  Ross  V.  Garrison,  1  Dana,  35 ;  Roj^ers 
V.  Grider,  fb.  243;  Sliaw  v.  Tlenrsey,  5  Mass. 
521;  Craft  V.  Wilcox,  1  Gill,  504;  Jackson 
V.  Stevens,  16  John.  115-6. 


(2)  Doe  V.  Howland,  8  Cow.  283. 

(3)  Barber  v.  Harri.s,  15  Wend.  615;  Jack- 
son V.  McConnel],  19  Wend.  175. 

(4)  Stoebleru  Knerr,  5  Watts,  181. 


CHAP.  LIV.]  TENANCY  IN  COMMON.  589 

the  entirety  of  the  tract,  with  the  chance  ofexclu'ling  by  survivorsliip 
the  heirs  of  the  other,  yet  the  wile's  equitable  estate  in  an  undivided 
moiety  was  not  defeated,  but  descended  to  her  chihJren  at  her  death, 
subject  to  her  husband's  life  estate  as  tenant  by  the  curtesy  ;  that  it 
was  not  competent  for  the  husband,  by  any  act  of  his,  to  divest  the 
equitable  estate  of  his  wife,  and  vest  it  in  himself,  eitheF-ftbsolutely  or 
contingently;  that  he  held  the  legal  title  to  the  undivided  moiety  of 
his  wife  in  trust  for  her  heirs;  and  that,  he  having  sold  the  land  to 
bona  fide  purchasers  without  notice,  equity  would  compensate  the  heirs 
of  the  Avife  out  of  the  estate  of  the  husband. (1) 

20.  It  has  been  seen, 'that  the  Revi.sed  Statutes  in  Massachusetts 
except  from  the  general  provision  in  relatiem  to  joint  tenancy  the  case 
of  a  mortgage  made  to  two  or  more  persons.  The  former  statute  upon 
this  subject  made  no  such  exception  ;  but  yet  it  was  held  to  exist  by 
implication.  Parsons,  Ch.  J.,  remarks,  "as  upon  the  deatli  of  either 
mortgagee,  the  remedy  to  recover  the  debt  would  survive,  we  are  of 
opinion  that  it  was  the  intent  of  the  parties^  that  the  mortgage  should 
comport  with  that  remedy,  and  for  this  purpose  that  the  mortgaged 
estate  should  survive.  Upon  any  other  construction,  but  one  moiety 
of  the  mortgaged  tenements  would  remain  a  collateral  security  for  the 
joint  debt,  which  would  be  clearly  repugnant  to  the  intention  of  the 
parties."('2)  In  another  case,  Jackson,  J.,  assigns  as  an  additional 
reason,  that  either  of  the  mortgagees,  by  releasing  the  debt,  would 
release  the  morto-age,  and  destroy  their  joint  title  and  estate  in  the 
land. (8) 

21.  But  after  foreclosure,  that  which  was  originally  a  joint  tenancy 
becomes  a  tenancy  in  common.  The  land  is  then  no  longer  a  pledge, 
but  the  title  is  vested  absolutely  in  the  mortgagee.  The  foreclosure 
operates  as  a  new  purchase.  The  mortgage  \s  no  longer  an  incident  to 
the  debt;  nor  is  it  connected  with  it,  any  more  than  if  the  partners 
had  received  [)ayment  of  the  debt  and  laid  out  the  money  in  the  pur- 
chase of  the  land.  The  entry  lor  condition  broken  gives  them  a  new 
and  different  estate.(4) 

22.  It  has  been  doubted  whether  the  same  principle  could  be  applied 
where  one  of  two  joint  mortgagees  dies  and  the  survivor  forecloses; 
for  that  would  be  to  turn  the  estate  from  a  trust  into  a  use  b\'  the  mere 
act  of  foreclosure.(5) 

2o.  In  the  Circuit  Court  of  the  United  States,  it  has  been  denied  that 
a  mortgage  given  to  several  persons  constitutes  them  joint  tenants. 
This  decision  was  made  under  a  statute  of  Eliode  Ishuul,  which  was 
similar  in  its  terms  to  that  of  Massachusetts.  Jutlge  Story  remarks,(6) 
"  the  doctrine  (held  by  Chief  Justice  Parsons)  that  a  conveyance  in 
mortgage  to  two  persons,  as  tenants  in  common,  becomes  by  the  death 
of  either  no  security,  except  for  a  moiety,  cannot,  in  my  judgment,  be 
maintained  in  point  of  law.  No  authority  is  cited  for  it,  and  it  seems 
to  me  irreconcilcable  with  established  principles.  It  cannot  be  deduced 
from  the  fact,  that  the  debt  vests  by  survivorship  in  one  party,  while 
the  estate  would  pass  to  another.  For,  at  the  common  law,  ujjon  the 
death  of  the  mortgagee,  the  estate  in  the  land  vests  in  the  heir,  while 


(1)  Norman  v.  Cunninfrliam,  5  Gratt.  63. 

(2)  Appleton  v.  Boyd,  7  Mas.  131. 

(3)  Goodwin  v.  Ricliardaon,   11  Mas.  472. 


(4)  Goodwin  v.  Richardson,  11  Mass.  469. 

(5)  3  Mas.  386. 

(6)  Kaudall  v.  riiillips,  3  Mas.  384. 


590  TENANCY  IN  COMMON.  [CHAP.  LIV. 

the  debt  vests  in  the  administrator.  Upon  the  like  argument,  it  ought 
to  follow  in  such  case,  that  by  the  death  of  the  mortgagee  the  whole 
security  in  the  land  should  be  gone;  and  yet  it  is  well  established, 
that  the  heir  takes  the  land  by  descent,  subject  to  redemption,  and  that 
the  debt  belongs  to  the  administrator.  So  if  a  mortgage  were  made  to 
two  persons  expressly  as  tenants  in  common,  as  security  for  a  joint 
debt,  by  the  conmion  law  they  would  hold  in  common  ;  and,  upon  the 
death  of  either,  his  share  would  descend  to  his  heir  as  tenant  in  com- 
mon, and  the  survivor  would  hold  the  other  moiety  as  tenant  in  com- 
mon, at  the  same  time  that  the  debt  would  vest  solely  in  him  by  sur- 
vivorship for  the  purposes  of  the  remedy.  So  if  a  sole  mortgagee  dies, 
the  land  descends  to  his  heirs  as  parceners,  while  the  debt  belongs  to 
the  administrator.  Hence  it  follows  that  the  estate  is  still  a  security 
for  the  debt,  into  whose  ever  hands  it  passes."  Judge  Story  proceeds 
to  remark  upon  the  flict,  so  strikingly  opposed  to  the  doctrine  which 
he  controverts,  and  which  we  have  already  noticed  (ch.  53,)  that  even 
in  England  the  implication  in  case  of  a  mortgage  to  several  persons  is 
in  favor  of  a  tenancy  in  common  instead  of  a  joint  tenancy  ;  thereby 
constituting  an  exception  to  the  general  rule,  directly  the  reverse  of 
that  established  by  the  court  in  Massachusetts. 

24.  In  the  case  of  Randall  v.  PhilUps,{\)  already  referred  to,  Judge 
Story  remarks,  that,  in  the  eye  of  a  court  of  equity,  it  would  make  no 
difference,  whether  the  legal  estate  survived  to  the  surviving  mortgagee 
or  not,  because  he  would  hold  in  trust  for  the  representative  of  the 
deceased.  There  seems  no  reason  to  doubt  that  this  would  be  the  case 
at  law  as  well  as  in  equity.  There  is  no  pretence  that  the  survivor 
could  retain  the  lohole  debt.  And  the  very  reason  for  holding  to  a  sur- 
vivorship in  such  case  is,  that  the  u\oxig-^gQ  follows  the  debt. 

25.  With  regard  to  trustees  and  executors,  although  for  peculiar 
reasons  they  are  excepted,  in  many  of  the  States,  from  the  general 
statutory  provisions ;  yet,  in  the  absence  of  any  express  exception, 
none  will  be  implied.  Thus,  it  has  been  held  in  Kentucky,  that  sur- 
vivorship is  abolished,  as  well  in  regard  to  trust  estates  as  others.(2) 

26.  The  American  statutes,  changing  joint  tenancy  into  teaancy  in 
common,  are  almost  universally  made  applicable  by  their  terms  to  es- 
tates previously  created,  as  well  as  those  to  be  created  subsequentl}'. 
The  objection  has  been  raised,  that  in  this  particular  such  statutes  are 
unconstitutional,  as  affecting  rights  and  interests  already  vested  ;  but 
it  has  always  been  overruled.  It  is  said,  the  principle  is  correct,  that 
the  legislature  cannot  impair  the  title  to  estates,  without  the  consent  of 
the  proprietors,  unless  for  public  objects,  when  an  adequate  considera- 
tion shall  be  provided.  But  there  can  be  no  objection  to  the  operation 
of  any  legislative  act  retrospectivel}^,  which 'shall  enlarge,  or  otherwise 
make  more  valuable,  the  title  to  any  estate  ;  for  the  consent  of  the 
holder  may  always  be  presumed  to  such  acts.  The  new  tenure  is  more 
beneficial  than  the  old  one  to  all  the  tenants ;  inasmuch  as  a  certain 
inheritance  in  a  moiety  is  more  valuable  than  an  uncertain  right  of 
succession  to  the  whole.  More  especially  is  this  principle  to  be  ap- 
plied, Avhere  both  tenants  have,  by  their  acts,  manifested  an  implied 

(1)  3  Ma8.  387.  I      (2)  Saunders  v.  Morrison,  7  Mon.  54.     See 

J  Benedict  v.  Morse,  10  Met.  223. 


CHAP.  LIV.]  TENANCY  IN  COMMON.  591 

assetit-to  the  operation  of  the  statute ;  as  where  each  has  brou;j;ht  a 
separate  writ  of  entry  for  his  undivided  moiety  against  a  stranger.(l) 

27.  The  same  principle  has  been  recognised  in  Pennsylvania.  The 
Court  remark  as  follows: — The  doctrine  of  survivorship  was  so  little 
known  to  people  in  general,  and  so  abhorrent  to  their  fecHngs  when 

known,  that  it  was  thought  best  to  get  rid  of  it  at  once The  courts 

had  been  long  struggling  against  it,  but  were  unable,  without  a  danger- 
ous prostration  of  established  principles,  to  go  as  far  as  they  wished. 
The  aid  of  the  legislature  was  therelbre  necessary.  The  operation  of 
the  act  is  no  invasion  of  vested  rights.  Who  should  be  the  survivor, 
was  in  contingency ;  and  in  the  mean  time  either  joint  tenant  might 
have  severed  the  estate  by  legal  means  without  the  other's  consent. 
The  act  of  assembly  did  for  them  at  once,  and  without  expense,  (that) 
which  ninety-nine  in  a  hundred  wished  to  be  done.  But  if  there  were 
any  joint  tenants  who  desired  the  chance  of  survivorship,  they  might 
have  it  by  an  agreement  for  that  purpose.  By  putting  a  limitation  on 
the  plain  words  of  the  law,  we  should  do  an  irreparable  injury  to  many, 
who,  reading  the  words  as  they  are  written,  have  supposed  a  partition 
unnecessary,  and  therefore  have  died  without  effecting  it.  The  act  de- 
prived no  man  of  his  property;  but  onl}^  placed  the  parties  on  an  equal 
and  sure  footing,  leaving  nothing  to  chance.(2) 

28.  Upon  the  same  principle,  where  the  demandants  in  a  real  ac- 
tion were  joint  tenants  when  it  was  commenced,  and  afterwanls,  by 
operation  of  law,  became  tenants  in  common  ;  held,  this  change  of  title 
was  no  defence  to  the  action. (8) 

29.  In  the  statutes  of  some  States  upon  this  subject,  a  proviso  is  in- 
serted, that  they  shall  not  affect  estates  alread}^  vested  by  survivorship. 
This  would  seem  to  be  a  superfluous  caution  ;  for  the  constitutional  ob- 
jection, already  referred  to,  would  undoubtedly  prevent  any  such  appli- 
cation of  the  statutory  provisions.(4) 

80.  Independently  of  statutory  provisions,  it  has  been  held  in  Mas- 
sachusetts,(5)  that  a  grant  of  land  hy  the  legislature  to  several  persons 
created  a  tenancy  in  common,  and  not  a  joint  tenancy,  though  the 
words  u.sed,  if  a  private  person  were  the  grantor,  would  create  the  latter 
estate.  It  is  said,  a  grant  by  the  legislature  is  a  statute  conveyance,  and 
the  intent  of  the  legislature  in  passing  the  resolution  must  govern. 
Most  of  the  public  lands,  which  were  alienated  by  the  late  province, 
and  also  by  the  common wealtli,  were  passed  by  virtue  of  acts  or  reso- 
lutions of  the  legislature.  Generally,  the  lands  were  granted  in  large 
parcels,  to  a  great  number  of  grantees,  on  condition  of  settlement,  and 
for  the  pur})ose  <;f  ibrming  towns.  These  grants  have  invariably,  from 
the  earliest  settlement  of  the  country,  been  held  to  create  tenancies  in 
common.  From  long  use,  the  practice  has  acquired  the  force  of  law  ; 
and  a  decision  repugnant  to  it  would  produce  infinite  confusion,  and 
affect  very  many  titles  to  land  in  the  state.  More  especially  is  this 
construction  to  be  given,  where  the  legislative  grant  is  made  ro  certain 
persons  upon  their  petition,  as  to  the  heirs  of  one  who  had  before  his 
death   taken  possession  of  the  land.     As  heirs,  they  would  not  have 

(1)  Miller  r.  ^filler,  16  Mass.  61;  Holbrook 


V.  Finney,  4,  568;  Annable  v.  Patoli,  3  Pick. 
363. 

(2)  Bombaugh  v.  Bombaugb,   11  Ser,  it  R. 
192. 


(3)  Hilh  V.  Doe,  6  N.  H.  328. 

(4)  11  Ser.  &  R.  193;   3  Pick.  363. 

(5)  Higbce  v.  Rice,  6  Mass.  360. 


592  TENANCY  IN  COMMON.  [CHAP.  LIT. 

taken  in  joint  tenancy,  and  it  cannot  be  presumed  that  the  legislature 
intended  they  should  so  take  as  grantees. 

81.  So  it  has  been  held  in  New  York,  that  where  several  patentees 
pay  equal  shares  of  the  purchase-rnoney,  and  execute  deeds  among 
themselves,  which  recite  that  they  purchase  as  tenants  in  common; 
such  tenancy  is  created,  although  the  patent  is  made  to  them  jointly. 
This  case,  however,  was  decided  rather  on  the  ground  of  a  trust,  than 
upon  that  of  a  grant  from  the  State.(l) 

82.  The  same  doctrine  has  been  recognized  in  Vermont.  In  the 
year  1781,  the  St;ite  granted  a  charter  of  a  township  to  several  persons, 
reserving  one-seventieth  part  for  the  use  of  a  seminary  or  college. 
The  proprietors  did  not  divide  or  assert  their  title  to  the  lands,  and 
the  \\hole  were  occupied  and  settled  by  other  pei'sons.  A  college 
being  afterwards  instituted,  the  trustees  were  empowered  to  take  pos- 
session of  the  lands  reserved,  and  they  brought  an  action  for  them 
against  one  who  had  for  thirty-eight  years  adversely  occupied.  The 
questitm  arose,  whether  proprietors  of  lands,  constituting  towns,  were 
to  be  regarded  as  tenants  in  common.  In  answer  to  the  objections, 
that  such  proprietors  may  do  many  things  hy  vote — as  making  a  di- 
vision of  their  lands  into  severalty,  voting  to  settlers  the  lots  on  which 
they  live,  in  lieu  of  their  drafts;  and  authorizing  a  division  hy  pilches ; 
and  may  gain  a  title  by  the  statute  of  limitations,  and  that  tiieir  pos- 
sessions are  considered  as  several ;  the  court  remark,  that  such  pro- 
prietors are  strictly  tenants  in  common,  and,  where  they  differ  from 
ordinary  tenants  in  common,  the  diiference  has  been  created  either  by 
statute  or  by  a  course  of  decisions  in  our  courts  of  law.  In  the  grants 
or  charters,  certain  civil  and  political  corporate  privileges  are  given  to 
those  who  inhabit  the  township,  but  not  to  the  proprietors,  who  may 
be  wholly  distinct  from  the  former.  Grants  in  this  country  have 
always  been_  construed  to  create  tenancies  in  common,  which  in  Eng- 
land would  make  joint  tenancies.  Unless  the  proprietors  take  an 
estate  in  common,  it  is  difficult  to  define  the  nature  of  their  interest.(2) 

83.  But  it  has  been  held  in  Kentuek}^,  that  where  a  grant  by  the 
commonwealth  was  made  to  two  persons,  and  one  of  them  died  before 
a  patent  was  issued,  (previously  to  the  statute  abolishing  survivorship,) 
the  survivor  took  the  whole  estate  both  in  1  iw  and  in  equity. (3)(a) 

8-1.  The  estate  of  a  tenant  in  common  is  subject  to  the  same  disposi- 
tions, incidents  and  charges  as  an  estate  owned  in  severalty.  Thus,  it 
has  already  been  seen,  (see  I)oive)\)  that  the  widow  of  a  tenant  in  com- 
mon has  dower,  suljject,  however,  to  the  qualification,  that  if  partition 
has  been  made  alter  marriage,  her  claim  shall  be  restricted  to  that  por- 
tion of  the  land  which  is  allotted  to  the  husband. (4) 


(1)  Cuylerv.  Bradt,  2  Caiiies  Cas  Err.  326. 

(2)  University,  &c.  v.  Reyuolds,  3   Venn. 
543. 


(3)  Overton  v.  Lacy,  6  Mon.  15. 

(4)  Sutton  V.  Kolte,  3  Lev.  84;  Co.  Lit.  34 
b,  37  b. 


(a)  It  has  been  held,  tliat  persons  joining  in  a  disseizin  are  joint  tenants.  Hence,  if  one 
of  ihem  die  seized,  after  jicaceable  possession  for  five  years,  no  descent  is  cast,  ;iiid  tlie  dis- 
seizee still  retains  his  rij^lit  of  entry.     Putney  v.  Dresser,  2  Met.  583. 

And,  if  one  of  tlie  disseizors,  in  possession  of  land  as  tenants  in  common,  atiandon  it,  the 
righllul  owner  does  not  receive  the  benefit  of  such  abandonment,  but,  as  against  him,  the 
othe'.'  disseizor  holds  the  whole.     Allen  v.  Ilolton,  20  Pick.  458. 

But  in  a  later  case  it  is  doubted  whether,  in  Massachusetts,  joint  disseizors,  entering  with- 
out title,  or  color  of  title,  are  joint  tenants,  or  tenants  in  common.  Fowler  v.  Tliayer,  4 
Cush.  111. 


CHAP.  LIV.]  TENANCY  IN  COMMON.  593 

35.  So  an  estate  in  com  mm  is  subject  to  cnrlesi/ ;  and  the  possession 
of  one  tenant  in  common  is  regarded  as  so  far  tliatof  the  other,  that  the 
husband  of  the  hitter  shall  be  tenant  by  the  curtesy.(l) 

8().  An  estate  in  common  passes  to  'heirs ;  and  it  lias  been  seen,  that 
this  is  one  principal  point  of  distinction  between  this  estate  and  a  joint 
tenaMcy.  ~- 

'67.  It  is  to  be  observed,  however,  that  the  transmission  of  an  estate 
in  common,  to  any  party  claiming  under  one  of  the  tenants,  passes 
nothing  more  than  the  undivided  iitterest  of  such,  tenant,  and  has  noclfect 
to  make  a  severance  of  the  estate.  Thus,  the  widow  can  claim  for  iier 
dower  only  an  undivided  third  of  her  husband's  interest.  Upon  the 
same  principle,  a  tenant  in  common  may  convey  his  estate  to  a  third 
person,  and  the  latter  will  hold  in  connection  with  the  remaining  ten- 
ant, merely  taking  the  place  in  all  respects  of  the  grantor.  But  a  ten- 
ant in  common  cannot  convey  any  distinct  portion  of  the  land  by  metes 
and  bonnds.(r/) 

38.  Thus,  where  one  of  two  joint  tenants,  after  a  parol  partition 
which  was  held  void,  conveyed  a  part  of  the  land  by  metes  and  bounds 
to  a  stranger;  held,  the  entry  of  the  latter  gave  him  no  seizin,  but  he 
was  a  mere  several  occupant ;  that  he  could  not  be  considered  as  a  dis- 
seizor of  the  grantor,  as  he  entered  by  his  consent;  nor  of  the  other 
joint  tenant,  because  one  joint  tenant  cannot  be  disseized  by  a  stranger 
of  any  particular  part,  unless  all  are  disseized.(2) 

39.  In  a  subsequent  case,  Jackson,  J.,  goes  into  a  more  minute  exam- 
ination of  the  law  upon  this  subject.  It  is  a  general  principle,  that  one 
joint  tenant  cannot  prejudice  his  comioanion  in  estate,  or  as  to  any  mat- 
ter of  inheritance  or  freetiold  ;  although,  as  to  the  profits  of  the  freehold 
as  the  jeceipt  of  rent,  &c.,  the  acts  of  one  may  prejudice  the  other. 
But  a  conveyance  by  metes  and  bounds  by  one-tenant,  would,  in  many 
cases,  tend  to  the  prejudice  and  even  to  the  destruction  of  the  interest 
of  the  otiier.  The  owner  of  a  moiety  of  a  farm  thus  circumstanced,  in- 
stead of  one  piece  of  land  conveniently  situated  (or  cultivation,  would 
on  a  partition,  be  compelled  to  take  perhaps  ten  or  twenty  dilK'rent  par- 
cels interspersed  over  the  whole  tract,  and  separated  by  the  parts  alloted 
to  the  several  grantees.  Suj)poso  that  two  men  hold,  jointly  or  in  com- 
mon, land  in  a  town  sufficient  only  for  two  house  lots,  and  that  onei  of 
them  could  convey  to  ten  persons  his  share  in  as  many  different  por- 
tions of  the  land;  the  other  original  co-tenant  would,  on  a  partition,  be 
compelled  to  take  ten  different  lots  or  parcels  not  adjoining  to  each  other 
and  each  too  small  for  any  useful  purpose,  instead  of  one  house  lot,  to 
which  he  was  originally  entitled  as  against  the  grantor.  The  restraint 
upon  such  conveyance  by  one  co-tenant,  and  not  the  privilege  of  makino- 
it,  is  to  be  considered  as  a  necessary  incident  to  the  estate.  Each  ten- 
ant was  originally  entitled  to  one  moiety,  for  quantity  and  quality,  to 


(1>  Sterling  v.   Penlington,    1-1  Viii.   Abr. 
511. 

(2)  Porter  v.  Hill,  9  Mass.  34 ;  ace.    Smith 


V.  Benson,  9  Verm.  138  ;  Blossom  v.  Brifrlit- 
man,  21  Pick.  285  ;  Jeflers  v.  Radcliff,  10  N. 
H.  242. 


(n)  While,  with  regard  to  parties  claiming  an  interest  in  the  estate  afttr  (he  deaUi  of  the 
tenant,  joint  tenancy  and  tenancy  in  common  are  subject  to  totally  dill'erent  ruli-s,  the  prin- 
ciples wliioh  rc'gnliile  the  irnnsCer  of  llRin  during  his  lile,  oitlicr  by  his  own  actor  act  of  law, 
are  sui.stanlially  the  same,  and  therefore  the  lollowing  remarks  may  be  received  as  alike  ap^ 
plicalile  to  both  estates. 

Vol.  I.  38 


594  TENANCY  IN  COMMON.  [CHAP.  LIT. 

be  assigned  to  him  in  the  modes  pointed  out  by  law  ;  and  this  right,  on 
the  part  of  one,  cannot  be  impaired  by  a  separate  act  of  the  other.  If 
one  co-tenant  has  the  right  to  convey  a  part  of  the  kind,  the  others  of 
course  have  the  same.  Suppose  then  that  three  or  more  persons  hold 
in  common  a  township  of  wild  land,  and  that  each,  without  regard  to 
the  others,  should  divide  the  whole  into  such  lots  as  he  thought  proper, 
and  sell  his  share  in  each  lot  to  different  purchasers.  As  the  lines  of 
the  lots  would  perhaps  never  coincide,  a  partition  among  the  several 
grantees  would  be  very  difficult  and  inconvenient;  and,  in  case  of  a 
large  number  of  owners,  perhaps  impossible.  While  the  right  in  ques- 
tion may  be  thus  injurious,  the  restraint  upon  it  can  rarely  if  ever  be 
so.  Thus,  if  one  of  two  co-tenants  of  forty  acres  wishes  to  sell  ten,  he 
may  convey  one  undivided  fourth  of  the  whole,  and  the  grantee  may 
obtain  partition  by  legal  process.  And  this  he  must  have  done,  if  the 
conveyance  had  been  of  a  moiety  of  twenty  acres  taken  out  of  the  forty. 
There  is,  therefore,  no  additional  trouble  or  expense,  and  the  only  dif- 
ference is,  that  the  grantor  is  prevented  from  selecting  any  particular 
part  of  the  land,  from  which  the  grantee  shall  take  his  share;  which  is 
a  right  he  could  never  claim  himself,  while  he  continued  the  owner  of 
the  whole  moiety. (1) 

40.  So,  in  a  case  decided  in  Connecticut,(2)Hosmer,  Ch.  J.,  remarks, 
in  regard  to  the  objection,  that  upon  partition  the  whole  of  that  portion 
of  the  land  which  is  conveyed  might  be  assigned  to  the  co-tenant ;  that 
it  is  no  answer  to  this  objection,  that  the  purchaser  on  partition  might 
have  an  equivalent  share  in  other  portions  of  the  land  assigned  to 
him ;  for  in  these  he  has  no  interest,  and  a  partition,  being  a  mere  dis- 
tribution and  not  a  conveyance,  is  founded  on  au  antecedent  estate,  and 
cannot  communicate  any  new  right. 

41.  Upon  the  same  principle,  the  levy  of  an  execution  against  one 
tenant  in  common,  &c.,  upon  any  designated  portion  of  the  land,  is 
void  ;  it  being  the  general  rule,  that  au  execution  can  be  extended  upon 
such  property  only  as  the  debtor  might  legally  convey.(3)(a) 

42.  The  principle  above  stated,  imposing  a  restraint  upon  one  tenant 
in  common,  &;c.,  in  regard  to  his  power  of  alienation,  is  therefore  ap- 
plied not  merely  to  a  conveyance  of  a  certain  portion  of  the  whole  land 
by  metes  and  bounds,  but  also  to  a  conveyance  of  his  Avhole  undivided 
interest  in  a  certain  portion  of  the  lands,  designated  by  metes  and 
bounds.  Thus,  supposing  A  and  B  to  be  tenants  in  common  of  twenty 
acres ;  in  the  first  place,  A  cannot  convey  to  a  stranger  one  of  those 
acres  by  metes  and  bounds,  so  as  to  bind  the  co-tenant;  and,  in  the 

(1)  Bartlettv.  Harlow,  12  Mass.  3-49.  I  win  v.  Whiting,  13,  57;  "Webber  v.  Mallett, 

(2)  Mitchell  v.  Haz^ii,  4  Conu.  510.  4  Shepl.  88;  Slainlbrd  v.  FuUerton,  6,  229. 

(3)  Bartlett  V.  Harlow,  12  Mass.  348 ;  Bald-  1 

^  (a)  But  in  New  Hampshire,  it  is  provided  by  statute,  (Rev.  St.  393,)  that  an  execution  may- 
be levied,  after  appraisal,  upon  the  undivided  interest  of  the  debtor,  he  being  a  tenant  in  com- 
mon, or  a  part  ikurcof.  If  indivisible,  upon  Ida  undivided  interest,  or  by  such  division  as 
the  appraisers  may  think  liest.  Similar  provision  in  Maine.  Rev.  St.  384.  See  Thompson 
V.  Barijer,  12  N.  11.  563;  Blevins  v.  Baker,  11  Ired.  201. 

One  tenant  is  not  bound  to  assert  his  title,  by  objecting  to  an  unlawful  conveyance  by  his 
co-tenant.     U.  S.  Dig.  1852. 

So,  notice  of  a  conveyance  by  one  tenant  of  a  part  of  the  land.g  in  severalty,  will  not 
prevent  a  party  from  purchasing  the  share  of  the  other  in  the  whole  of  the  estate.  Mere 
notice  of  au  invalid  conveyance  cannot  make  it  good.     lb. 


CHAP.  LIY.]  TENANCY  IN  COMMON.  595 

second  place,  lie  cannot  convey  all  his  undividerl  interest  in  one  acre, 
designatinii-  it  by  metes  and  bounds,  so  as  to  bind  bis  co-tenant.  The 
rule,  as  <,fenerally  stated  by  the  elementary  writers,  would  seem  liter- 
ally iipplicable  to  the  former  alone  of  tliese  cases.  Thus  Chancellor 
Kent  says,(l)  "one  joint  tenant,  &;c.,  cannot  convey  a  distinct  portion  of 
the  estate  by  inetes  and  hounds,''''  &c.  But  most  of  the  decisions  do  not 
fall  within  these  terms ;  for,  instead  of  attempting  to  convey  the  icliole 
of  any  specific  portion  of  the  lands,  the  tenant  conveys,  or  his  creditors 
take  upon  execution,  only  his  undivided  interest  in  a  si)ecific  portion. 
And  the  reasoning  of  the  court  seems  to  make  no  distinction  between 
the  two  cases.  Thus,  in  Bartlett  v.  IIarloiv,{s.  39,)  the  execution  was 
levied  upon  an  undivided  interest  in  a  specific  portion  of  the  land  de- 
signated by  metes  and  bounds ;  and  the  remarks  of  Judge  Jackson, 
already  cited,  have  a  particular  application  to  these  circumstances.  So, 
in  Baldwin  v.  W/iiting,{2)  the  execution  was  levied  upon  three  undivided 
fourth  'parts  of  a  specific  i^art  of  the  land,  owned  by  the  debtor  in  common 
Avith  others.  But  although  there  would  seem,  at  first  sight,  to  be  a 
distinction  between  the  two  forms  of  alienation  referred  to,  3'et  on 
principle  they  rest  on  the  same  ground.  The  true  meaning  of  the 
general  proposition,  that  one  tenant  in  common,  &c.,  cannot  con- 
vey by  metes  and  bounds,  is,  not  that  he  cannot  convey  his  co-tenunfs 
share  in  a  designated  portion  of  the  land,  or,  by  his  own  single  act, 
without  consent  of  the  other  party,  make  severance  or  partition,  for  this 
seems  to  be  taken  for  granted ;  but  that  a  conversance  of  the  whole 
estate  in  a  part  of  the  land  will  not  pass  even  his  own  share.  Thus,  in 
Porter  v.  Hill,  (s.  38,)  Judge  Sewall  says,  "  one  joint  tenant  cannot  con- 
vey a  part  of  the  land  by  metes  and  bounds  to  a  stranger.  If  he  could, 
his  grantee  would  become  tenant  in  common  of  a  particular  part  with  the 
other  joint  tenant,  who,  in  making  a  legal  partition,  might,  notwithstand- 
ing, have  the  whole  of  the  part  thus  conveyed,  assigned  as  his  pur- 
party."  Upon  this  jorinciple,  such  grantee  not  only  could  not  maintain  a 
reed  action  for  the  whole  land,  but  he  could  not  bring  a  suit  for  partition, 
claiming  only  a  moiety ;  and  it  is  in  the  latter  form  that  the  point  has 
often  been  settled.  In  Mitchell  v.  Ilazen,  a  case  already  cited,  (s.  40,) 
the  conveyance  purported  to  pass  only  an  undivided  interest.  In  a 
later  case,(3)  in  the  same  State,  the  deed  purported  to  convey  so  much 
land,  generall}^,  b}^  metes  and  bounds,  making  no  reference  to  any  un- 
divided interest;  and  the  remark  of  the  court,  in  d.  ciding  the  deed  to 
be  void,  that  it  was  an  attempt  to  make  a  partition  of  (lie  property,  would 
seem  directed  against  the  claim  that  the  ivhole  title  in  the  land  convej'ed 
passed  by  the  deed.  So,  in  a  case  in  Tennessee, (4)  where  the  same 
point  was  decided,  the  deed  purported  to  convey  the  whole  of  a  certain 
part  of  the  land  by  metes  and  bounds.  On  the  whole,  it  may  be  laid 
down  as  the  true  construction  of  the  general  proposition  referred  to, 
that  the  objection  does  not  stand  upon  the  form  of  a  conveyance,  pur- 
porting to  pass  the  whole  lanil ;  but  equally  precludes  the  tenant  from 
conveying  liis  own  undivided  interest  in  a  part  of  the  land,  by  a  deed 
which  purports  to  couvc}'  nothing  more. 

43.  It  is  to  be  observed,  that  an  alienation  of  the  interest  of  one 
joint  tenant,  &c.,  either  by  deed  or  by  legal  process,  is  not  for  all  pur- 

(1)  4  Comra.  368.  1      (3)  Griswold  v.  Johnson,  5  Conn.  363. 

(2)  13  Mass.  57.  |      (4)  Jewett  v.  Stockton,  3  Yerg.  492. 


596 


TENANCY  IX  COMMON. 


[CHAP.  LIT. 


poses  void  ;  bat  will  operate  against  him  and  all  claiming  under  him 
hy  estoppel,  whether  he  had  notice  or  not,  and  can  be  avoided  only  by 
the  co-tenant  who  is  injured,  or  those  claiming  under  him.  The  as- 
signees of  the  latter  have  in  this  respect  all  the  rights  of  their  assignor. 
B}'  the  assignment,  all  his  interest  passes  to  them,  without  any  entry 
upon  the  land.  With  regard  to  one  claiming  under  the  tenant  whose 
share  is  alienated,  if  he  also  derive  a  regular  title  from  the  co-tenant, 
perhaps  he  might  be  allowed  to  waive  bis  claim  under  the  former,  and 
avoid  the  alienation  by  setting  up  his  title  under  the  ]atter.(l) 

44.  It  has  been  held  in  Ohio,  by  a  majority  of  the  coun,  that  a  ten- 
ant in  common  might  lawfully  convey  a  part  of  his  undivided  estate 
by  metes  and  bounds,  but  it  was  admitted  that  the  point  was  attended 
with  considerable  difficulty,  for  the  reasons  above  referred  to.  Judge 
Burnet  dissented. (2) 

45.  In  Massachusetts,  by  the  Revised  Statutes,  where  the  whole  in- 
terest of  a  tenant  in  common  is  more  than  sufficient  to  vSatisfy  an  execu- 
tion against  him,  it  shall  be  levied  upon  an  undivided  portion  of  that 
interest,  sufficient,  according  to  appraisement,  to  satisfy  the  execution. (3) 

46.  Although  a  tenant  in  common  cannot  alienate  absolutely  his 
share  in  a  part  of  the  land,  3'et  it  has  been  held,  that,  where  sucli  ten- 
ant has  been  allowed  to  improve  separately  a  certain  portion  of  the 
land,  he  might  lease  this  portion  to  a  stranger,  and  the  latter  maintain 
an  action  for  any  disturbance  by  the  other  tenants.(4)(a) 

47.  At  common  law,  one  joint  tenant  in  common  had  no  remedy 
against  another  for  the  rents ot  the  estate,  except  by  charging  him,  under 
an  express  contract,  as  a  bailiff  or  receiver.  Statute  4  and  5  Anne,  c. 
16,  gave  an  action  ot  account  in  such  case.  This  statute  is  re-enacted 
in  New  York,  and  Chancellor  Kent  ))resumes  that  it  has  been  intro- 
duced in  substance  into  the  general  law  of  this  countr3\(5)  Similar 
acts  have  been  passed  in  Virginia,  New  Jersey,  Mississippi,  Vermont 
and  Rhode  Island. (6) 

48.  In  Connecticut,(7)  the  acti(ni  of  account  is  provided  between  joint 
tenants,  &c. ;  except  in  cases  where  two  or  more  are  sued  by  one,  when 
a  bill  in  equity  mu.st  be  brought. 

49.  In  ^Iassachusetts,(8)  the  action  of  account  is  abolished.     But  a 


(1)  Yarnum  v.  Abhot,  12  Mass.  474  ;  Bald- 
win V.  Whiting.  13,  57.  U.  S.  Dig.  1852,  14 ; 
Howe  V.  Blanden,  2!  Verm.  315. 

(2)  Lessee  v.  Sayre,  2  Ohio,  110;  ace. 
Prentiss.  &c-.,  7  Oliio,  129.  The  general  rule 
is  aHopted  in  Tennessoe;  3  Terg.  492:  but 
seems  not  to  be  in  Maryland ;  Reinicker  v. 
Smith,  2  Har.  &  J.  421  "  It  has  been  held 
that  a  deed  by  one  ten.-int  ofa  certain  number 
of  acres  in  common,  wiiich  is  less  thai!  his 
whole  share,  is  not  void  lor  uncertainly.  U. 
S.  Di--.  1832.  The  levy  ofan  execution  upon 
an  undivided  portion  ofa  Tarm,  such  part  be- 
ing spt'cified  by  metes  and  bounds,  the  whole 
ofwiiicii  (arm  was  holdcii  Viy  the  debtor  as 
tenant  in  common,  will,  it  seems,  be  valid, 
until  the  otlier  co-tenant  has  obtained  parti- 


tion, and  ousted  the  creditor  from  the  part  so 
levied  upon;  and  tlierefore  an  action  cannot 
be  maintained  to  recover  tiie  amount  of  the 
judgment  satisfied  by  the  levy,  until  the  cred- 
itor has  been  ousted  of  some  part  of  the 
land.     Godwin  v.  Grege,  28  Maine,  1-8. 

(3)  Mass.  Rev.  St.  464. 

(4)  Keay  i;.  Goodwin,  16  Mass.  1. 

(5;  4  Kent,  369  ;  McKim  v.  Odom,  3  Bland, 
411. 

(6)  1  N.  J.  L.  156:  Missi.  Rev.  C.  117; 
Verm.  L.  142;  R.  I.  L.  193;  1  Vir.  R.  0. 
111. 

(7)  Com.  St.  36, 

(8|  Mass.  Rev.  St.  500,  695;  Brigham  V. 
Eveletli,  9  Mass.  538;  9  Pick.  34.  Sec  Mc- 
Murrav  v.  Kawson,  3  Hill,  59. 


(a)  But  one  tenant  cannot  legally  autliorize  a  third  person  to  cut  timber,  for  the  consider- 
ation of  the  stumpage.     Baker  v.  Whiting,  3  Sumn  476. 


CHAP.  LTV.]  TENANCY  IN  COMMON.  597 

bill  in  equity  lies  in  all  cases.  So  assumpsit,  on  a  promise  by  <jnc 
tenant  to  another  to  pay  the  latter  his  share  of  rent  received  Irom  a 
tenant.  So  also  an  action  of  indcbilaius  assumpsit  lies  by  one  joint  ten- 
ant, &;e.,  against  another,  who  has  actually  received  more  than  his  share 
of  the  prolits.(a)  But  unless  he  has  thus  received  an  undue  pnjporlion, 
he  is  not  liable  to  an  action  murely  upon  the  ground  of  soie  occupai  cy, 
where  the  co-tenant  has  made  no  claim  to  possession ;  for  if  he  were, 
as  each  tenant  is  seized  per  my  et  per  tout,  he  would  be  liable  in  the 
same  way,-  by  reason  of  occupying  any  particular  part  of  the  laud, 
which  would  be  unreasonable  and  absurd.(l)(6) 

60.  It  is  said,  that  if  there  be  two  tenants  in  common  of  a  dove-house, 

(1)  Sargent    v.    Parsons,    12  Mass.    149;  I  McKinney,  6  W.  &  Serg.  78. 
Brinsmaid  v.  Mayo,   9  Verm.  31 ;  Gillis  v.  \ 

(a)  So  in  New  York,  1  Rev.  St.  750.  Otliorwise  in  Tennessee,  2  Yerg.  384.  In  Dela- 
ware, one  tenant  maj'  Ijring  an  action  for  use  and  occupation  agsiinst  anotlier.  Kev.  St.  286. 
A  tenant  in  conuuon  who  agrees  with  tiie  wile  of  his  co-tenant,  that  the  co-tenant  shall  have 
the  sole  occupation  of  the  laud,  and  pay  him  a  certain  sum  therefor  ;  cannot  niaiiitain  an  action 
for  such  occupation,  if  he  does  not  prove  that  the  co-tenant  had  actual  knowledge  of  such 
agreement,  or  that  he  authorized  his  wife  to  make  it.     Wilbur  v.  Wilbur,  13  Met.  494. 

(6)  Prolits  received  by  one  tenant  give  the  other  an  equitable  lien  upon  the  land.  The 
claim  is  personal  on  both  sides,  to  bo  paid  from  the  personal  estate  of  the  former,  and  to  the 
personal  representative  of  the  latter,  not  to  his  heir,  devi-see  or  grantee.     4  Paige,  336. 

It  seems,  one  tenant  is  liable  to  atiolher,  for  his  share  of  the  expense  of  necessary  repairs, 
made  by  the  latter.  Gibbons,  101.  See  Schrenen  v.  Joyner,  I  Hill,  Cha.  2G0;  infra,  sec. 
70.  But  where  A,  owning  a  chamber,  repairs  the  roof  of  the  house,  he  cannot  claim  con- 
tribution from  B,  the  owner  of  the  cellar,  because,  in  view  ot  the  law,  tliey  own  distinct 
dwellings.  Loring  v.  Bacon,  4  Mass.  575.  See  Cheesborough  v.  Green,  10  Conn.  318.  It 
has  been  held,  tiiat  one  tenant  in  common  without  express  agreement  cannot  charge  another 
on  account  of  buildings  or  improvements  placed  upon  the  land  by  him.  'Ihurston  v.  Dick- 
inson, 2  Rich.  Eq  317;  Taylor  v.  Baldwin,  10  Barn.  582.  See  infra,  sec.  71.  But  also, 
that  one  temint  is  not  liaVjle  for  such  part  ot  the  rent  which  the  premises  would  produce, 
as  ari.ses  from  such  improvements.  Thompson  v.  Bostick,  1  McMul.  75 ;  Hancock  v.  Day, 
lb.  69,  298;   Holt  v.  Robertson,  lb.  475. 

So  where  one  tenant  expends  money  in  improvements,  although  such  expenditures  do 
not  strictly  constitute  a  lien,  yet  a  court  of  equity,  m  making  partition,  will  first  direct  an 
account  and  suitable  compensation,  or  assign  to  such  tenant  or  his  grantee  the  portion  on 
■which  the  improvements  have  been  made.  Green  v.  Putnam,  1  Baro.  500 ;  ace.  Peyton  v. 
Smith,  2  Dev.  &  B.  349.  It  is  not  necessary  for  him  to  show  an  assent  to  his  making  them, 
by  his  co-tenants,  or  a  promise  by  them  to  contribute  towards  the  expenses,  or  a  request  on 
them  to  join  in  making  them,  and  a  refusal.     lb. 

Wliere  there  were  two  tenants  in  common,  and  a  third  person  obtained  a  deed,  covering 
the  share  of  one,  supposing  he  was  acquiring  a  good  title  thereto,  entered  into  possession  of 
the  entire  premises  and  made  improvements,  and  subsequently  the  other  tenant  brought 
ejectment  against  him  for  his  share,  and  recovered;  held,  he  was  entitled  to  recover  against 
the  plainliQ'iu  ejectment,  the  amount  which  the  share  of  the  land  thus  recovered  had  been 
improved  by  the  betterments  upon  the  entire  tract.     Strong  v.  Hunt,  20  Verm.  614. 

In  Soutii  Carolina,  if  one  tenant  in  comnion  buy  in  an  outstanding  title,  he  may  claim 
contribution,  on  the  ground,  that  in  equity  it  enures  to  the  benefit  of  both,  and  he  cannot 
claim  it  for  himself  alone.     Field  v.  Pelot,  1  Mc.Mul.  370. 

A  and  B  were  tenants  in  common  of  an  estate,  for  which  B  had  paid  his  share  of  the 
purchase-money,  and  which  they  divided  by  partition.  A  died,  and  his  heirs  agreed  that 
his  widow  should  retain  possession  of  A's  part,  which  B  afterwards  leased  from  her.  The 
former  owner  brought  ejectment  against  B,  tiir  A's  part  of  the  purchase-money,  which  B 
paid.  Held,  he  could  liold  the  land  as  security  for  repayment  of  the  purchase-money,  but 
for  no  otlier  debt,  against  the  heirs  of  A.  Leitch  v.  Little,  2  Harris,  250.  One  tenant  m 
common  may  redeem  land  sold  for  la.ves.     Watkins  v.  Eaton,  30  Maine,  529. 

After  redemption  and  a  release  to  him  from  the  purchaser,  a  tender  made  by  his  co-tenant 
to  the  purchaser  of  his  own  proportion  of  the  tux  and  expenses,  though  made  within  the 
time  allowed  by  law  for  redeeming,  is  of  no  eflect.     lb. 

If  one  tenant  redeem  land  sold  for  taxes,  hi.s  co-tenant  cannot  maintain  a  writ  of  entry 
against  him  for  his  share  of  the  land,  without  a  previous  tender  of  his  share  of  the  amount 
for  which  the  land  was  sold.     lb. 


598 


TENANCY  IN  COMMON. 


[CHAP.  LIT. 


and  the  one  destroy  the  old  doves,  whereby  the  flight  is  wholly  lost, 
the  other  may  have  an  action  of  trespass  against  him.  So,  if  one  of 
two  tenants  in  common  of  a  park  destroy  all  the  deer.  So  where  there 
are  tenants  in  common  of  a  mill  and  privilege,  one  may  maintain  tres- 
pass against  another  for  the  destruction  of  the  mill.  So  where  A  and 
B  own  a  mill,  and  B  another,  below,  and  B  builds  a  dam  whereby  the 
water  is  made  to  flow  back  upon  the  former  mill ;  A  may  bring  an 
action  against  B.(l) 

51.  In  Maine,  one  tenant  in  common  may  have  trespass  against 
another  who  prevents  him  from  entering  or  occupying  the  land. (2)  In 
the  same  State,  if  one  tenant  commit  waste,  without  forty  days'  notice 
to  the  other,  he  is  liable  to  treble  damages  in  trespass.  In  Massachu- 
setts and  Michigan,  there  shall  be  thirty  days'  notice.  The  same  pen- 
alty, for  waste  committed  pending  a  process  for  partition.  In  North 
Carolina,  one  tenant  may  have  an  action  on  the  case  for  waste  against 
another,  but  not  trespass,  either  against  him  or  one  claiming  under  him. 
In  New  Hampshire,  one  tenant  may  bring  assumpsit  for  trees  or  other 
property  injured  by  the  other,  or  for  keeping  him  out  of  possession. 

52.  It  is  said,  if  there  be  two  tenants  in  common  of  a  dwelling-house, 
and  they  severally  furnish  and  occupy  different  apartments,  one  co- 
tenant  has  no  right  to  disturb  the  other's  occupation  by  removing  his 
furniture  ;  and  trespass  would  clearly  lie  for  such  removal. (3) 

53.  In  Illinois  a  statute  provides,  that  for  assuming  and  exercising 
exclusive  ownership,  taking  away  or  destroying  the  common  property, 
lessening  its  value,  injuring  or  abusing  it;  one  tenant  in  common,  &c., 
may  have  trespass  or  trover  against  another.(4)(a) 

54.  It  was  held  in  an  ancient  case,  that  if  there  be  two  tenants  in 
common  of  a  wood,  and  the  one  leases  his  part  to  the  other  for  years, 
if  the  lessee  cuts  down  trees  and  does  waste,  he  will  be  punished  for  a 
moiety  of  the  waste,  and  the  lessor  may  recover  a  moiety  of  the  place 
wasted.  (5) 

55.  But  this  doctrine  seems  to  have  been  overruled  in  a  subsequent 
case,(6)  in  which  it  was  held,  that  such  lessee  cannot  be  regarded  as 
standing  in  a  less  favorable  light  than  he  would  have  done  if  no  lease 
had  been  made ;  that  if  one  tenant  in  common  misuse  the  common 
property,  he  is  liable  as  for  a  misfeasance,  but  some  injury  must  be 
done  to  the  inheritance,  as  by  cutting  trees  which  are  unfit  to  be  felled. 
Otherwise  he  does  nothing  more  than  take  the  fair  profits  of  the  estate. 
In  this  case,  the  trees  were  proper  to  be  cut,  and,  upon  this  ground,  it 
was  distinguished  by  counsel  from  the  case  in  Moore,  above  referred  to. 

50.  In  many  of  the  States,  a  remedy  has  been  given  by  statute  for 


(1)  Co.  Lit.  200  a;  Maddox  v.  Goddard,  3 
Shepl.  218;   Odionie  v.  Lyford,  9  N.  H.  536. 

(2)  Maine  L.  1837,  442. 

(3)  Keay  j;.  G-oodvvin,  16  Mass.  3  ;  1  Smith's 
St.  137-8 ;  Mass.  Rev.  St.  630 ;  Anders  v. 
Meredith,  4  Dev.  &  B.    199.     See  Causee  v. 


Andprs,  lb.  246;  Mich.  Rev.  St.  497;  N.  H. 
Rev.  St.  358;  Hubbard  v.  Hubbard,  3  Shepl. 
198  ;   Moody  v.  Mood}',  lb.  205. 

(4)  Illin.  Rev.  L.  474. 

(5)  2  Cruise,  356;    Moo.  71,  pi.  194. 

(6)  Martin  v.  Knowllys,  8  T.  R.  145. 


(a)  In  Vermont,  one  tenant  in  common  cannot  maintain  trespass  against  another,  unless 
actually  expelled,  or  hindered  from  occupyinp:.  Booth  v.  Adams,  11  Verm.  156  So  in 
Pennsylvania,  where  a  tenant  in  common  of  land  is  actually  ousted  by  a  co-tenant,  he  may 
maintain  trespass  quart  dauHura.  McGill  v.  Ash,  7  Barr,  397.  It  is  no  defence,  to  admit 
the  right  of  the  plaintifif,  and  oflfer  to  account.     lb. 


CHAP.  LIV.]  TENANCY  IN  COMMON.  599 

one  tenant  in  common  against  another,  who  commits  waste  upon  the 
common  pro{3erty.(«) 

57.  In  New  Jersey, (1)  when  several  sold  lands  held  together,  and  none 
knows  his  or  their  several  part,  one  may  have  a  writ  of  waste  against  ano- 
ther; and  when  the  suit  comes  to  judgment,  the  defendant  shall  be.required 
to  take  a  certain  part  of  the  land  to  be  assigned  l)y  the  slmrilf  and  jury, 
or  give  security  that  he  will  take  nothing  more  from  the  land  than  the 
other  tenants  take.  If  the  defendant  elect  to  take  his  part  in  a  certain 
place,  tin  assignment  shall  be  made  to  him  in  the  place  wasted,  making 
no  allowance  for  the  waste  done;  but  if  he  does  not  thus  elect,  or  if 
the  amount  of  waste  exceed  the  value  of  his  proportion  of  the  land, 
the  plaintiff  shall  recover  damages. 

58.  In  Rhode  Island, (2)  a  tenant  in  common,  &c.,  who  commits 
waste,  forfeits  double  the  amount  of  the  waste  committed. (6) 

59.  The  general  rule  is,  that  the  possession  of  one  joint  tenant,  kc, 
is  that  of  the  others  also,(c)  that  is,  the  possession  of  one  is  not  adverse 

(1)  1  N.  J.  L.  209.  I      (2)  R.  I.  L.  199. 


(a)  As  to  tlie  reme'ly  in  Massachusetts  and  Maine,  see  pp.  585-6.  It  also  exists  in  New 
York, — 2  Rev.  St.  334;  and  Delaware, — Rev.  Sts.  293.  In  Kentucky,  it  seems  to  be  limited 
to  parceners.  1  Ky.  R.  L.  562.  So  in  Ohio, — St.  1831,  258.  Waste  may  be  prevented  by 
an  injunction  in  equity.  Twort  v.  Twort,  16  Ves.  128.  If  the  property- is  destroyed  by  the 
nejjlifrenee  of  one  tenant,  ho  is  responsible  to  the  others.  Chelsey  v.  Thompson,  3  N.  H.  9. 
See  Durham,  &c.  v.  Wawn,  3  Beav.  119;  Maden  v.  Veevers,  5.  503.  Although,  in  special 
cases,  one  tenant  in  common  may,  on  the  application  of  the  other,  he  enjoined  from  com- 
niittinf^  waste;  tlie  jurisdiction  is  sparin<^ly  exercised.     Obert  v.  Olvert,  1  Halst.  Cii.  397. 

A  tenant  of  land  may  maintain  assumpsit  against  a  co-tenant,  under  tlie  statute  of  New 
Hampsliire,  passed  July  5,  1834.  (entitled  "  An  act  relating  to  co-partners,  co- parceners," 
&c..)  for  his  proportion  of  damages  caused  by  cutting,  although  the  plaintiff  has  alienated 
his  interest  in  the  land  after  the  cutting,  but  before  the  action  was  commenced.  Blake  v. 
Miliken,  14  N.  H.  213. 

Nor  is  it  necessary  that  all  the  co-tenants  at  the  time  of  the  injury  should  join  in  tiio  ac- 
tion ;  but  eacii  co-tenant  may  have  his  several  action.     lb. 

But  it  seems  tliat  they  may  join.     lb. 

It  seems,  that  it  is  not  necessary  in  such  an  action  to  prove  an  actual  title  in  the  defendant. 
His  entry,  claiming  title,  is  sufficient  evidence  to  make  a  2)rima  farie  case  against  him.     lb. 

Nor,  it  seems,  could  the  fact  that  tiie  plaintiff's  grantors,  before  conveying  to  him,  eut 
more  than  their  proportion  of  timber,  in  any  way  affect  his  right  to  maintain  the  ac» 
tion.     lb. 

On  a  bill  for  partition,  by  a  tenant  in  common,  owning  a  twentieth  part  of  a  farm  of  200 
acres,  an  injunction  was  granted  against  the  tenant  in  common,  in  possession,  restraining 
him  from  cutting  timber.  The  answer  of  the  defendant  .showed,  that  he  was  the  owner  of 
eight-twentieths,  that  he  had  made  improvements  to  the  amount  of  $2,000,  and  tliat  he  only 
intended  to  cut  the  wood  and  timber  from  two  acres  near  the  barn,  which  ho  had  commenced 
doing  when  the  injunction  was  served  ;  and  he  denied  all  intention  to  commit  waste.  The 
injunction  was  dissolved.     Obert  v.  Obert,  1  Halst  Ch.  397. 

(h)  As  to  injuries  by  tenants  in  common,  and  the  liability  of  one  for  another.  See  Simp- 
son V.  Seavey,  8  Greetd.  138. 

(c)  Tlie  giving  up  by  a  disseizor,  to  one  tenant  in  common,  of  all  his  .share  in  the  land, 
reinstates  all  in  their  title.  Vaughan  v.  Bacon,  3  Shepl.  455.  So,  an  entry  by  one,  upon 
part  of  the  land  to  which  they  have  a  title,  will  give  a  seizin  in  the  whole,  to  all  the  tenants, 
according  to  tlieir  respective  interests.  Thomas  v.  Hatch,  3  Sumn.  170.  See  Oilman  v. 
Stetson,  6  Shepl.  428;  Creswcll  v.  Altomus,  7  Wati.s,  565;  "Watson  v.  Gregg,  10,  296; 
Hart  v.  Gregg,  lb.  189.  So,  the  possession  of  one  co-parcener  being  tinit  of  all,  none  in  pos- 
session of  tiie  whole  can  defend,  under  the  statute  of  limitations,  against  the  rest,  with- 
out an  actual  disseizin  or  ouster.     Purcell  v.  Wilson,  4  Gratt.  16. 

Tliough  a  great  lapse  of  time,  with  other  circumstances,  may  warrant  the  presumption  of 
such  disseizin,  it  is  matter  of  evidence  for  the  jury,  not  of  law  for  the  court,  upon  a  special 
verdict.     lb. 

So,  one  tenant  in  common  cannot,  by  the  purchase  of  an  outstanding  title  or  incumbrance 


600 


TENANCY  IN  COMMON. 


[CHAP.  LIV. 


to  the  title  of  the  others,  but  amicable  and  in  support  of  the  rights  of 
alL  But  still  one  tenant  may  by  special  acts  disseize  another,  and  by 
length  of  possession  gain  an  adverse  title. 

60.  Where  one  tenant  in  common  received  all  the  rents  for  twenty- 
six  years,  it  was  held,  that  this  was  a  mere  failure  to  account,  and  not 
an  ouster  or  expulsion,  which  could  be  effected  only  by  an  actual  dis- 
seizin.(2) 

61.  But  where  one  tenant  in  common  had  sole  and  undisturbed  pos- 
session for  thirtj'-six  years,  without  any  account,  or  any  claim  or  de- 
mand by  the  other,  or  any  one  claiming  under  him.  Lord  Mansfield 
left  it  to  the  jury  to  say,  whether  there  was  not  sufficient  evidence  to 
presume  an  actual  ouster,  and  ihey  found  a  verdict  for  the  defendant, 
Avhich  was  sustained  by  the  court.  Lord  Mansfield  remarked,  that 
the  terms  actual  force  did  not  imply  real  force,  or  a  turning  out  by  the 
shoulders.  A  man  may  come  in  rightfully,  and  hold  over  adversely, 
and  such  holding  over  is  equivalent  to  actual  ouster.  The  possession 
of  one  tenant  in  common,  eo  nomine,  as  tenant  in  common,  can  never 
bar  his  companion,  because  it  is  not  adverse,  but  in  support  of  their 
common  title ;  and,  by  paying  him  his  share,  he  acknowledges  him  to 
be  co-tenant.  Nor  is  a  refusal  to  pay  sufficient,  without  denying  his 
title;  but  if,  upon  demand  of  payment,  the  tenant  in  possession  deny 
the  others  title  and  claim  the  whole,  the  subsequent  possession  is  ad- 
verse.(3)     A  demand  of  possession,  in   order  to  furnish  evidence  of 


(2)  Fairclaim  v.  Shacklelon,  5  Burr.  2604  ; 
Clymer  v.  Dawkins,  3  How.  674 ;  Dexter  v. 
Arnold,  3  Sumn.  152;  Harpending  v.  Dutch, 
&G.  16  Pet.  455 ;  Tajlor  v.  Cox,  2  B.  Monr. 
435;  Liscomb  v.  Root,  S  Pick.  376;  Buck- 
master  V.  Needham,  22  Yerm.  617  ;  Whitting- 
ton  V.  "Wright,  9  Geo.  23  ;  Anders  v.  Anders, 
9  Ired.  214. 

(3)  Doe  V.  Prosser,  Cowp.  217  ;  Gause  v. 
Wiley,  4  S.  &  R.  567  ;  Terrill  v.  Murry,  4 
Yerg.  104  ;  Rickard  v.  Rickard,  13  Pick.  251  ; 
Allen  V.  Hall.  1  McC.  131  ;  Galbreatb  v.  Gal- 


breath,  5  Watts,  146 ;  Mehaffy  v.  Dobbs,  9 
Watts,  363  ;  Law  v.  Patterson,  1  W.  &  S.  191 ; 
Reading  v.  Royston.  2  ISalk.  422  ;  Snales  v. 
Dale,  Hob.  120;  Davenport  v.  Tyrrell,  1  Bl. 
R.  675  ;  Doe  v.  Hulse.  3  B.  &  C.  757 ; 
Leonard  v.  Leonard,  10  Mass.  231,  Boyd  v. 
Graves,  4  Wheat.  5!3  ;  Drane  v.  Gregory,  3 
B.  Monr.  622  ;  Mason  v.  Finch,  1  Scam.  497  ; 
Colburn  v.  Mason,  25  Maine,  434  ;  Edwards 
V.  Bishop,  4  Coinst.  61 ;  2  N.  Y.  Rev.  Sts. 
307. 


acquire  title  to  the  whole,  against  his  co-tenant,  but  such  purchase  will  operate  to  the  bene- 
fit of  both,  and  the  purcliaser  may  claim  contribution.     Jones  v.  Stanton,  11  Mis.  433. 

So,  an  heir  cannot,  in  an  action  by  his  co-heir,  prove  that  the  ancestor  had  no  title. 
Corwin  v.  Corwin,  9  Barb.  219. 

But  a  purchase  by  one  tenant  in  common,  of  a  title  to  the  land,  does  not  enure  to  the  benefit  of 
the  other,  where  it  was  Ijought  in  before  the  tenancy  began.  Stieed  v.  Athercon,  6  Dana, 
278.  A  purchaser,  from  one  of  several  co-tenants,  of  part  of  a  tract  of  land,  without  refer- 
ence to  the  title  of  the  others,  does  not  necessarily  become  a  tenant  in  common,  so  as  to 
prevent  him  from  perfecting  his  title  by  adverse  possession,  under  the  statute  of  limitations; 
it  being  only  necessary,  in  order  to  constitute  adverse  possession,  that  the  land  should  be 
held  as  one's  own.     Gray  v.  Bates,  3  Strobh.  498. 

Where  two  or  more  persons  have  a  joint  interest  in  property,  they  are  under  mutual  obli- 
gation not  to  injure  one  anotlier ;  but.  where  one  party  denies  a  joint  interest,  and  is  in  pos- 
session under  color  of  title  in  fee  in  himself,  he  can  quiet  his  title  by  producing  an  adverse 
claim  of  title,  without  abandoning  his  own,  even  from  one  who  claims  to  be  a  joint  tenant 
with  the  purchaser.     Burhams  v.  Yan  Zandt,  7  Barb.  91. 

Where  two  tenants  in  common  owned  certain  lands,  subject  to  a  mortgage,  and,  after  long 
litigation,  tlie  joint  interest  was  sold  to  a  stranger,  and  one  of  the  tenants  purchased  the 
existing  mortgage  at  a  great  discount;  held,  he  could  hold  it  exclusively,  and  enforce  it  to 
the  full  amount.     Wells  v.  Ciiapman,  4  Sandf  Ch.  312. 

It  is  said,  tenants  in  common  do  not  stand  in  a  relation  to  each  other  so  analogous  to 
that  of  landlord  and  tenant,  as  to  come  under  the  principle  of  estoppel.  Washington  v.  Con- 
rad, 2  Humph.  502.     See  Weeks  v.  Weeks,  5  Ired.  Equ.  111. 


CHAP.  LTV.]  TENANCY  IN  COMMON.  6^1)1 

ouster,  must  be  a  demand  only  of  the  party's  share,  not  the  whole 
land.(l) 

62.  It  has  been  held  in  England,  that  where  one  tenant  in  common 
levied  a  line  of  tlie  whole  estate,  and  took  the  rents  and  profits  after- 
wards without  account  for  nearly  five  years,  this  was  no  evidence  upon 
which  the  jury  should  find  an  ouster  at  the  time  of  tlieirne,  against  the 
justice  of  the  case,  and  in  aid  of  gross  fraud  ;  that  the  fine  was  no 
ouster,  but  the  court  might  consider  it  as  rightfully  and  legally  made, 
and  intended  to  operate  only  on  the  party's  own  share  of  the  estiite  (2) 

6'S.  Bat  it  has  been  decided  in  New  York,  that  where  one  tenant  in 
common  undertakes  to  couvey  the  whole  hind,  the  grantee  shall  not 
be  understood  to  enter  as  a  tenant  in  common,  but  the  statute  of  limi- 
tations will  run  in  his  favor  against  the  co-tenants.(«)  By  the  Revised 
Statutes,  without  an  actual  ouster  or  total  denial  of  right,  ejectment 
cannot  be  raaintained.(c)) 

64.  With  regard  to  suits  brought  by  tenants  in  common  against 
strangers  for  recovery  of  the  land,  the  common  law  rule  is,  that,  hav- 
ing several  titles,  they  must  bring  separate  actions.  But,  in  Vermont, 
Connecticut  and  Virginia,  they  may  sue  jointly.  In  Kentucky,  one 
joint  tenant  or  tenant  in  common  may  sue  for  his  share  or  the  whole.(4) 

(1)  Meredith  v.  Andres,  7  Ired.  5.  ;  v.  Rogers,  4  Cranch.   165:  Term.  L.  96 ;  1 

(2)  Peaceable  v.  Reed,  1  E.  568.  '  Swift,  103  ;  Vir.  L.  1823,  27  ;  May  i;.  Parker, 

(3)  Clapt;.  Bromagliam,  9  Cow.  551 ;  Brad- !  12  Pick.  38  ;  Watson  v.  Hill.  1  M'Cord,  161  ; 
street  i;.  Huntington,  5  Pet.  444;  Bigelow  u.  McFadden  v.  Haley,  2  Bay,  457;  King  v. 
Jone.s,  10  Pick.  161;  Butler  v.  Phelps,  17  Bullock,  9  Dana,  41;  Chesround  v.  Cunning- 
Wend.  G42;  Gillct  v.  Stanley,  1  Hill,  121;  ;  ham,  3  Blackf.  85.  See  Starnes  v.  Quin,  6 
Sharp  I'.  Ingraham,  4,  116;  2  N.  Y.  Rev.  St.  I  Geo.  84;  Lane  v.  Dobyns,  11  Miss.  105; 
306-7.  •  Craig  v.  Taylor,  6  B.  Mon.  457. 

(4)  McCreary  v.  Ross,  7  Watt^,  483  ;  Hicks 


(a)  So  in  Massachusetts,  a  conveyance  by  one  tenant  in  conuiioti  of  the  whole  land  in  fee, 
with  covenants  of  seizin  and  warranty,  followed  by  the  entry  and  exclusive  possession  of 
the  grantee,  is  a  disseizin  of  the  other.  Kittredge  v.  Locks,  &c.,  17  Pick.  246;  Parker  v. 
Proprs.  &c  3  Met.  91.    See  Ross  v.  Durham,  4  Dev.  &  B.  54;  Thomas  v.  Hatch,  3  Sunin.  170." 

The  owner  of  an  undivided  part  of  a  parcel  of  land  gave  a  deed  of  the  whole  lot,  the 
grantee  entered,  and  afterwards  a  creditor  of  the  grantee  levied  upon  the  whole,  and  entered 
under  the  levy,  claiming  to  bo  sole  owner.  Held,  the  co-tenant  of  the  grantor  was  disseized. 
Bigelow  v.  Jones,  10  Pick.  161.  Upon  the  same  principle,  if  a  third  person  enter  on  the 
land,  claiming  against  one  tenant  in  common,  and  exclude  him ;  this  is  a  disseizin  of  all. 
Price  v.  Lyon,  14  Conn.  279. 

By  Stat.  3  and  4  Wm.  IV,  ch.  27,  sec.  12,  if  a  tenant  in  common  is  in  pos-session  of  more 
than  his  share  for  his  own  benefit,  or  that  of  any  one  but  the  other  tenant,  such  possession 
shall  not  bo  taken  to  be  that  of  the  other  tenant.  1  Steph.  312,  n.  See  Doe  v.  Horrucks 
1  Carr.  &  K.  566.  A,  one  of  tenants  in  common,  conveys  the  whole  land  to  B,  witii  war- 
ranty. B  enters,  claiming  the  whole.  C,  the  other  tcnaiit,  requests  him  to  relinquish  one- 
half,  but  lie  refuses  so  to  do,  saying,  he  will  sooner  stand  a  law-suit.  This  is  an  ouster  of 
C,  who  may  maintain  a  suit  tor  the  land  against  B.     Marcy  v.  Marcy,  6  Met.  360. 

Where  one  of  two  joint  tenants  overflows  the  lands  of  the  joint  estate  so  as  to  appropriate 
them,  it  amounts  to  an  ouster.     Jones  v.  Weathersbee,  4  Strobh.  50. 

A  mort'jage  of  the  whole  estate  by  one  tenant  in  common,  is  not  conclusive  evidence  of 
an  ouster  of  his  co-tenants.      Wilson  v.  Collishaw,  1  Harr.  276. 

If  the  tenant,  on  being  nolifiod  by  the  demandant  of  his  claim  to  be  owner  of  one-fourth 
part  thereof;  merely  admits  that  ho  is  in  possession  of  the  demanded  premise,",  and  adds, 
'•  It  is  hard  to  pay  twice ;"  this  is  not  evidence  of  an  ouster  or  disseizin.  Colburu  v.  Mason! 
25  Maine,  434. 

A  and  B  were  tenants  in  common  of  land.  C  obtained  possession  of  the  land,  claiming 
under  B ;  but  A  knew  nothing  of  his  title,  and  ejected  C  by  process  of  forcible  entry  and 
detainer.  Held,  that  this  was  not  an  ouster  of  B  by  his  co-tenant  A.  Meredith  v.  Andres 
7  Ired.  5.  ' 

A  sale  by  one  tenant,  and  a  receipt  of  the  price  by  him  of  the  whole  tract,  does  not  render 
him  trustte  of  his  co-tenant  for  his  share  of  the  uurciiasemoncy.  The  legal  title  to  his  land 
remains  m  him,  and  his  remedy  is  at  law.     Milton  v.  Hogue,  4  Ired.  Eq.'415. 


602  TENANCY  IN  COM-MON.  [CHAP.  LIY. 

65.  lu  Rhode  Island,  Maine  and  Massachusetts,  all  the  tenants  or 
any  two  may  join,  or  any  one  sue  alone.  In  Connecticut,  if  the  plain- 
tiff" grounds  on  the  title  of  all  the  tenants,  he  recovers  for  their  benefit, 
and  his  possession  will  be  theirs.  If  two  join  and  one  is  non-suited, 
the  other  may  recover  the  whole.  In  New  York,  all  need  not  join, 
except  when  ejectment  is  brought  as  a  substitute  for  a  writ  of  right.(l) 

66.  In  Missouri,(2)  it  is  held  that  tenants  in  common  cannot  join  in 
ejectment. 

67.  In  Tennessee,(3)  it  is  the  uniform  practice  for  tenants  in  common 
to  declare  in  ejectment  on  a  joint  demise,  and  recover  a  part  or  the 
whole  of  the  land  according  to  the  evidence.  If  the}'  join  in  suit  and 
one  is  barred  by  the  statute  of  limitations,  this  is  no  bar  to  the  rest.(a) 

68.  It  has  been  already  stated,  that  joint  grantees  of  public  lands 
hold  as  tenants  in  common.  The  question  has  been  raised,  whether, 
on  account  of  their  peculiar  title,  such  grantees  can,  like  other  tenants 
in  common,  bring  ejectment. 

69.  Although  not  distinctly  decided,  it  is  said  that  it  may  be  assumed, 
that  ejectment  may  be  brought  by  one  proprietor  of  lands  granted  by 
the  State,  when  the  others  have  actually  taken  possession  and  divided 
to  themselves  all  the  lands  included  in  the  limits  of  the  grant ;  though 
this  action  would  lie,  only  where  the  proprietors  refuse  to  divide  accord- 
ing to  law,  and  after  demand.  But  there  is  more  difficulty  in  the  ap- 
plication of  these  principles  and  extending  this  remedy  to  those  who 
are  directed,  as  agents  or  trustees,  to  take  charge  of  the  rights  of  land 
which  are  usually  denominated  public  rights.  The  nature  of  their  inter- 
est does  not  permit  that  it  be  enjoyed  in  common  with  other  proprie- 
tors. In  regard  to  them,  it  is  only  the  tise  which  is  appropriated,  and 
not  the  freehold.  Statutes  provide  that  such  trustees  may  lease  the 
lands.  But  it  would  be  of  little  avail  to  them,  to  take  possession  of  a 
fractional  part  of  every  lot  or  tenement  in  a  town  ;  and  it  would  be 
impossible  to  lease  them  to  any  profit  or  advantage.  Moreover,  if  such 
trustees  are  to  be  regarded  as  tenants  in  common,  inasmuch  as  one  of 


(1)  R.  I.  L.  208  ;  1  Swift,  103 :  Mass.  Rev. 
St.  611;  Me.  Kev.  St.  569-70 ;  Verm.  Rev. 
St.  216  ;   KeUogg  v.  Kellogg,  6  Barb.  116. 


(2)  "Wathen  v.  English,  1  Misso.  746, 

(3)  Barrow  v.  Nave,  2  Yerg.  228. 


(a)  Tenants  in  common  may  join  in  an  appeal  concerning  a  road,  but  parties  having  dififer- 
ent  interests  must  prosecute  separate  appeals.     County,  &c.  v.  Brown,  13  lUin.  207. 

Where  two  tenants  in  common  recovered  land  in  ejectment  against  a  third ;  held,  they 
were  also  entitled  to  their  joint  action  for  mesne  profits.     Camp  v.  Homesley,  11  Ired.  211. 

In  an  action  of  trespass  quare  clausum,  for  breaking,  entering  upon,  and  cutting  and  carry- 
ing away  trees  from  land  owned  by  tenants  in  common,  each  tenant  is  entitled  to  his  several 
action  ;  and  it  cannot  be  defeated  by  a  subsequent  payment  to  his  co-tenants  for  the  wood 
thus  taken  and  carried  away.     Longfellow  v.  Quimby,  29  Maine,  196. 

The  general  rule  is,  that  tenants  in  common  must  join,  in  an  action  to  recover  damages 
for  an  injury  to  the  common  property ;  but,  where  there  is  no  joint  injury,  and  the  tenants 
in  common  are  not  jointly  interested  in  the  damages,  the  remedy  may  be  by  a  several  action. 
Lothrop  V.  Arnold,  25  Maine,  136. 

But  if  the  action  is  several,  when  it  should  have  been  joint,  and  there  is  no  plea  in  abate- 
ment, the  objection  cannot  be  taken  by  a  plea  upon  the  merits.     lb. 

One  tenant  may  give  a  release,  which  will  bind  the  other,  of  their  claim  for  a  trespass. 
Bradley  v.  Boynton,  9  Shepl.  287.  Recovery  in  ejectment  against  one  tenant  in  commoa 
alone,  does  not  justify  dispossej'sion  of  the  others.     Breeding  v.  Taylor,  6  B.  Mon.  62. 

Premises  owned  in  common,  by  defendants  in  execution,  may  be  sold  thereon,  in  a  body, 
unle.ss  some  one  claiming  to  be  part  owner  require  that  the  same  be  sold  separately.  Neil- 
son  V.  Neiison,  5  Barb.  565. 


CHAP.  LIV.] 


TENANCY  IN  COMMON,  ETC.— PARTITION. 


r;03 


such  tenants,  in  Yeruiont,  in  a  suit  by  himself  alone,  may  recover  the 
whole  land  ;  and  as  public  lands  are  excepted  from  the  statute  of  liini- 
tations ;  it  would  follow,  that  although  the  other  tenants  were  barred 
by  the  statute,  the  trustees  might  still  recover  the  wliole  land,  in  part 
for  the  benefit  of  the  others,  and  not  merely  their  own  share.  Upon 
these  grounds,  no  action  of  ejectment  can  be  maintainert^by  such  trus- 
tees, until  a  division  or  allotment  is  made.  But  when  there  is  no  actual 
location,  ejectment  will  lie  to  recover  the  public  lands.(l) 

70.  One  joint  tenant,  &c.,  can  compel  the  others  to  unite  in  the 
expense  of  necessary  repairs  to  a  house  or  mill ;  but  not  of  repairs 
made  upon  other  things — as,  for  instance,  a  fence.  The  writ  de  repara- 
tionefacieiida  lay  at  common  law  in  such  cases,  by  one  tenant  against 
others.  To  sustain  the  action,  there  must  be  a  request  and  refusal  to 
join,  and  the  expenditures  must  have  been  previously  made.(2) 

71.  If  one  tenant  make  or  authorize  neiu  crtdions,  though  with  the 
knowledge  of  the  other,  he  cannot  claim  to  hold  them  exclusively,  till 
reimbursed. (3)(a) 

72.  It  has  been  held  in  Kentuck}^,  that  where  a  suit  is  brought  to 
recover  land  from  several  tenants,  and  only  one  of  them  permanently 
resists  it,  and  finally  prevails ;  he  has  a  lien  against  the  rest  for  costs 
and  expenses.(-i) 


CHAPTER  LV. 


TENANCY  IN  COMMON,  ETC.— PARTITION. 


1.  Methods  of  partition  ;  partition  in  equity. 

2.  Statutes  of  the  several  States  concerning. 

3.  In  the  New  England  States. 
9.  New  York. 

10.  Pennsylvania. 

11.  New  Jersey,  Alabama  and  Mississippi. 
'i'2.  Maryland. 

13.  Delaware. 

14.  Tennessee. 


15.  Illinois. 

16.  Indiana. 

17.  Missouri. 

18.  Kentucky. 

19.  Ohio. 

20.  Virginia. 

21.  North  Carolina. 

22.  South  Carolina. 

23.  Georgia. 


1.  Some  remarks  have  already  been  made,  in  regard  to  the  sever- 
ance of  a  joint  tenancy,  &c.,  by  the  acts  of  the  parties  themselves. 
Partition  may  also  be  obtained  by  application  to  the  legislature,  or 
by  legal  process.(6)     It  is  to  be  presumed  that  the  old  English  statutes 


(1)  University,  &c.  v.  Reynolds,  3  Verm. 
554-5-6 

(2)  4   Kent,    369-70  ;    9    Pick.    31.      See 
supra,  sec.  49,  n. 


(3)  Crest  v.  Jack,  3  Watts,  238. 

(4)  Shepherd  v.  Mclutire,  5  Dana,  576. 


(a)  There  is  a  peculiar  provision  in  Virginia,  that  joint  tenants,  &c.,  may  give  a  single 
joint  vote  where  the  whole  estate  entitles  to  a  vote,  but  a  share  does  not.  Vir.  St.  1830, 
16,  17. 

(b)  It  is  said,  tenants  in  common  have  an  absolute  right  in  law  to  have  their  estate 
divided.  Ledbetter  v.  Gash,  8  Ired.  462.  Partition  will  not  be  granted,  upon  the  applica- 
tion of  parties  who  own  the  whole  land.  Swett  v.  Bussey,  7  Mass.  503.  (Otherwise  ia 
Delaware.    See  sec.  136.) 


604 


TENANCY  IN  COMMON,  ETC.— PARTITION. 


[CHAP.  LY. 


already  referred  to,  (ch,  53,  sec.  69,)  providing  a  writ  of  partition, 
have  been  generally  re-enacted  or  adopted  in  this  country.  ^  In 
practice,  however,  these  remedies  are,  to  a  great  extent,  superseded, 
by  the  more  summary  and  convenient  methods  of  petition  to  the 
courts  of  common  law,  of  Chancery,  or  of  probate.  The  jurisdiction 
of  Chancery  upon  the  subject  is  well  estaljHshcd  by  a  long  series  of 
decisions.  But  equity  does  not  generally  interfere,  unless  the  title  be 
clear,  and  never  where  the  title  is  denied  or  suspicious,  until  oppor- 
tunity has  been  had  to  try  the  title  at  law.(l)(a) 

2.  "The  statutory  provisions  of  the  several  States,  in  regard  to  parti- 
tion, are  very  precise  and  numerous.  With  a  general  similarity,  there 
are  still  points  of  difference  among  them,  which  require  a  distinct  sum- 
mary view  of  the  law,  in  each  State.  It  will  be  seen  that  in  Kentucky, 
and  in  the  three  States  of  Alabama,  Mississippi  and  New  Jersey,  there 
are  respective  peculiarities  deserving  of  special  notice.  The  methods 
of  partition  among  co-parceners  or  heirs,  which,  however,  have  very 
little  to  distinguish  them  from  that  between  other  joint  owners,  will 
be  more  particularly  referred  to  under  the  title  of  Descent. 

3.  In  Massacliusetts,(2)  joint  tenants,  &c.,  may  have   partition  by 


(1)  4  Kent,  364 
V.  Goings,  13  lUin. 


;   1   N.  J.  L.  89 ;  Homey 
95  ;   Haabury  v.  Hussey, 


5  Eiig.  L.  &  Eq.  81  ;  Bowra  v.  Wright,  3  lb. 
190. 
(2)  Mass.  Rev.  St.  618-20;  St.  1842,  222. 


{a)  By  St.  3  and  4  Wm.  IV,  cli.  27,  the  writ  of  partition  is  abolislied,  and  the  only  remedy 
is  a  bill  in  equity.  In  Wisconsin,  (Rev.  Sts.  570,)  partition  may  be  obtained  in  all  eases  by 
bill  in  equity.     But  a  remainder-man  cannot  file  such  bill. 

Courts  of  equity  have  jurisdiction  to  award  partition  of  estates,  whether  corporeal  or  in- 
corporeal.    Bailey  v.  Sisson,  1  Rhode  Island,  233. 

A  decree  for  partition  cannot  be  made,  unless  all  the  persons  interested  are  made  parties, 
Burhans  v.  Burhans,  2  Barb.  Ch.  398. 

A  decree  for  partition,  by  a  court  of  equity,  assigning  the  portions  of  the  distributees, 
amounts  to  no  more  than  an  ordinary  convej'ance.     Anderson  v.  Hughes,  5  Strobh.  74. 

In  South  Carolina,  interests  in  real  or  personal  properly  may  be  severed  by  tlie  Court  of 
Equity,  and  tlie  share  of  eacli  owner  ascertained  and  setoff,  where  the  subject  matter  is  not 
susceptible  of  division.  The  justice  or  practicability  of  any  mode  of  partition,  is  a  matter 
for  the  commissioners;  and  if,  in  their  judgment,  no  division  can  be  made  without  manifest 
injustice,  they  may  recommend  a  sale,  and  the  court  will  judge  of  the  propriety  of  confirm- 
ing such  return.     Steedraan  v.  Weeks,  2  Strobh.  Eq.  145. 

Partition  of  standing  Umber  will  be  ordered,  without  regard  to  the  character  of  the  estate 
of  either  party,  or  the  difficulty  of  executing  the  commission.     lb. 

A  court  of  equity  is  not  restricted  to  a  purlition  or  sale  of  the  whole  lands;  but,  when  it  is 
necessary  to  prevent  prejudice,  and  can  be  done  without  prejudice,  may  allot  their  respect- 
ive shares  of  land  to  some,  and  direct  a  sale  of  the  residue.  Haywood  v.  Judson,  4  Barb. 
228. 

So,  if  one  tenant  has  transferred  his  interest;  in  the  mode  of  division,  regard  will  be  had 
to  the  equities  of  the  purchasers.  Story  v.  Johnson,  2  Y.  &  Coll.  586.  A  way  over  one  por- 
tion of  the  land  may  be  assigned  to  the  party  taking  another  portion.  Lister  v.  Lister,  3 
lb.  540. 

On  a  bill  for  partition,  a  court  of  chancery  will  not  determine  conflicting  titles ;  nor,  in 
an  action  of  ejectment,  is  a  partition  by  decree  conclusive  upon  the  rights  of  the  parties. 
Whilloek  v.  Hale,  10  Humph.  04. 

In  general,  where  the  defendant  is  in  possession,  claiming  adversely  to  the  plaintiff,  par- 
tition will  not  be  granted  in  equity  ;  but,  where  the  question  arises  upon  an  equitable  title 
set  up  by  either  party,  the  rule  does  not  apply.  Hostbrd  v.  Merwin,  5  Barb.  51 ;  Burhans 
V.  Burhans,  2  Barb.  Ch   398. 

But  it  has  been  held,  that  a  bill  in  Chancery  lies  for  partition,  notwithstanding  an  adverse 
possession,  unless  it  has  been  continued  long  enough  to  bar  a  recovery  under  the  statute  of 
limitations.     Howey  v.  Goings,  13  111.  95  ;  Overton  v.  Woolfblk,  6  Dana,  374. 

The  defence,  to  a  bill  for  partition,  that  the  premises  are  held  adversely  to  the  complain- 
ant, may  be  made  specially  by  plea  or  answer ;  but  that  is  not  necessary,  where  the  fact  is 
distinctly  stated  in  the  bill.     Burhans  v.  Burhans,  2  Barb.  Ch.  398. 


CHAP.  LV.]  TENANCY  IN  COMMON,  KTC— PARTITION.  605 

writ  or  by  petition. (f<)  Tiio  shares  of  the  petitioners  shall  be  set  ofF, 
and  the  residue  of  the  land  remain  undivided. (i)  A  remainder-man  or 
reversioner  cannot  have  partition  ;(1)  nor  any  tenant  for  year.^,  of 
whose  term  less  than  twenty  years  is  unexpired,  as  against  a  tenant  of 
the  freehold.  But  all  tenants  for  years  may  have  partition  between 
themselves;  which,  however,  shall  not  bind  the  land"lords  or  rever- 
sioners, when  the  terms  enii.(c)  The  petition  sets  forth  the  titles  of 
all  persons  interested,  and  who  will  be  bound  by  the  partition,  whelher 
having  a  freehold  or  term,  a  present  or  future,  a  vested  or  contingent 
estate.     A  reversioner,  kc,  after  a   life   estate  or  term,  is  a  party  in- 

(1)  See  Ilodgkiiison,  12  Pick.  374;  Wain- .  altliouj^h  one  tenant  is  trustee,  attorney  or 
Wright  V.  D(irr,  13,  333;  Liscomb  v.  Root,  8,  Itruardian  of  anotlier.  A  joint  tenant,  &c., 
376.  A  niort^aKee  may,  though  the  niort-  though  disseized,  may  maintain  a  petition  for 
gagor  or  his  co-tenant  remain  in  possession  ;  partition,  if  he  lias  a  preseTit  rijrJjt  of  entry, 
their  possession  being  his.  Rich  v.  Loud,  18  Marshall  v.  Crehore,  13  Me>t.  462.  See  Bon- 
Pick.  322.  By  St.  1853.  993,  past  and  future  ner  v.  Prop'rs,  &o.,  7  Mass.  47  5;  Barnard  v. 
partitions  are  made  valid,  notwithstanding  Pope,  14,434;  Fisher  v.  Dewerson,  3  Met. 
the  existence  of  leases  of  the  estate.     So,  J  544. 

The  bill,  in  such  a  case,  sliould  be  dismissed  as  prematurely  filed,  witliout  prejudice  to 
the  right  to  institute  a  new  suit,  after  a  recovery  in  ejectment  or  otherwise.     lb. 

Upon  a  bill  for  partition,  the  rents  and  profits  accruing  while  tiie  land  was  held  adversely 
are  not  recoverable,  being  more  properly  recoverable  as  mesne  proiils,  in  au  ejectment  for 
the  complainant's  undivided  share,     lb. 

One  holding  a  life  estate  in  one-fKlli  of  certain  land,  terminable  by  marriage,  may  have 
partition.     Hobsoii  v.  Sherwood,  4  Beav.  184. 

Tlie  ri^iit  of  a  tenant  in  common,  to  partition  of  a  legal  estate,  is  as  absolute  in  a  court  of 
equity  as  in  a  court  of  law.  The  courts  have  concurrent  jurisdiction,  as  to  an  actu<d  p^irti- 
tion,  and  must  adjudicate  on  the  same  principles.  Dounell  v.  Mateer,  7  Ired.  Eq.  94  ;  Hag- 
gin  V.  Haggin,  2  B.  Mon.  318. 

In  case  of  a  petition  at  law,  for  an  actual  partition,  if  tlie  defendant  wishes  to  avail  him- 
self of  an  equitable  defence,  as,  for  instance,  a  claim  under  a  contract  for  purchase,  lie  must 
obtain  an  injunction  to  stay  proceedings  at  law,  until  the  cause  can  be  heard  in  equity.    lb. 

If  tii3  application  be  to  a  court  of  equity,  it  is  not  sufficient  for  the  defendant  to  rely  upon 
his  equitable  grounds  of  defence  in  his  answer,  lie  must  tile  a  cross-bill,  for  which  the 
court  will  allow  him  a  reasonable  time.  But  his  failure  to  do  so  will  not  prevent  him  from 
filing  a  separate  bill  for  relief,  as  the  partition  affects  the  legal  title  only,  and  the  share 
assigned  in  severalty  could  still  be  reached.     lb. 

A  complainant  in  a  bill  in  equity  claimed  half  of  an  estate  by  inheritance  from  his  father, 
and  the  other  half  bj'  inheritance  Irom  his  brother,  and  alleged  thut  the  will  ot  his  l^rother 
was  void  for  fraud,  &c.,  but.  in  case  tlie  will  sliould  be  adjudged  valid,  then  he  still  claimed 
one-half  of  the  estate,  and  insisted  that  he  was  entitled  to  a  partition;  and  the  prayer  of  the 
bill  was,  that  the  will  migiit  be  declared  void,  or  that  a  partition  might  be  had.  Held,  the 
bill  did  not  make  a  case  tor  partition,  and  therefore  was  not  muUc/uriav^.  Brady  v.  McCos- 
ker,  1  Comst.  214. 

On  a  bill  for  partition,  the  defendants'  supposed  title  to  a  part  of  the  land  having  failed, 
they  cannot  be  released  from  a  proportionate  part  of  the  purchase-monej',  due  to  the  ad- 
ministrator of  th3  party  whose  heirs  are  plaintill's,  upon  a  mere  reference  to  the  matter  in 
their  answer,  without  filing  a  cros.s-bill.     (ilick  v.  Gregg,  19  Ohio,  57. 

(a)  As  to  the  degree  of  certainty  required  in  the  description  of  the  land,  see  Miller  v.  Mil- 
ler, Ig  Pick.  215.  Petition  for  partition  of  three  parcels  of  land.  The  petitioner  was  proved 
to  be  seize']  in  common  of  only  two  of  them,  and  the  respondent  to  be  sole  Seized  of  the 
third.  Held,  the  petitioner  could  not  amend  by  striking  out  tlie  third  parcel,  but  the 
respon  lent  simuld  have  his  costs,  and  partition  was  ordered  ol  the  other  two.  Loud  v.  Pen- 
niman,  1 9  Pick.  539.  But  where  a  petitioner  alleged  a  seizin  in  fee,  and,  upon  the  (acts  agreed, 
it  appeared  that  his  interest  was  only  for  life;  the  petition  was  amended  so  as  to  conlorm 
to  the  opiniou  of  tlie  court,  and  judgment  for  partition  awarded  accordingly.  ¥&y  v.  Fay,  1 
Gush.  93. 

{b)  This  may  be  done  in  equity,  on  application  of  the  respondents,  llobson  v.  Sherwood, 
4  Beav.  184. 

(c)  Where  tlie  same  person  owns  in  foe  one  undivided  part,  and  holds  a  mortgage  of  the 
remainder,  of  a  lot  of  land;  the  mortjjagor  is  not  enliiled  to  partition.  Bradley  v.  Fuller, 
23  Pick.  1.  So  mortgagees  before  foreclosure  cannot  liave  partition.  Ewer  v.  liobns,  5 
Met.  1. 


606  TENANCY  IN  COMMON,  ETC.— PARTITION.  [CHAP.  LT. 

terested,  and  entitled  to  notice.(o)  Unknown  parties  who  are  interested 
shall  be  notified  bj  public  advertisement.(&)  Where  one  not  named 
in  the  petition  appears  and  defends,  the  petitioner  may  deny  his  title. 
If  the  petitioner  shows  himself  entitled  to  partition,  an  interlocutory 
judgment  is  rendered  accordingly,  and  commissioners  are  appointed  to 
make  partition.  If  there  are  several  petitioners,  their  shares  may  be 
set  off  together  or  separately  at  their  election.  If  a  division  cannot  be 
made  without  damage  to  the  owners,  a  disproportionate  share  may  be 
assigned  to  any  one  who  will  accept  it,  on  his  paving  or  securing  a 
sum  requisite  to  equalize  the  value  ;  or  the  exclusive  possession  may 
be  assigned  to  the  parties  alternately  for  certain  specified  times,  accord- 
ing to  their  respective  interests.(c)  In  the  latter  case,  the  oceupant  for 
the  time  being  shall  be  liable  to  the  other  owners  for  any  injury  to 
the  land,  like  a  lessee  without  express  covenants.  For  any  injury  by 
a  stranger,  the  occupant  may  recover  damages  like  a  lessee ;  and  he 
and  the  other  tenants  may  recover  jointly  for  any  further  damage 
for  which  lessors  might  sue.  The  final  judgment,  confirming  and 
establishing  the  partition,  shall  be  conclusive  as  to  all  rights,  both  of 
propert}^  and  possession,  of  all  parties  and  privies  to  the  judgment,(l) 
including  all  who  might  have  appeared  and  answered,  excepting,  how- 
ever, any  joint  owner  absent  from  the  State,  who  is  allowed  three  years 
to  obtain  a  new  partition.  One  claiming  the  land  in  severalty  is  not 
bound  by  a  judgment  of  partition,  not  having  appeared  as  a  respond- 
ent. If  one,  wlio  has  not  appeared  and  answered,  claim  the  share 
assigned  to  or  left  for  any  of  the  supposed  part  owners,  he  shall  be 
bound  by  the  judgment,  so  far  as  it  respects  the  partition  and  assign- 
ment of  the  shares,  as  if  he  had  been  a  party  ;  but  may  still  bring  a 
suit  for  the  share  which  he  claims,  as  a  specific  'portion  of  the  land, 
against  the  party  to  whom  it  was  assigned  or  left.  Where  two  or 
more  persons  appear  as  respondents,  claiming  the  same  share  of  the 
land,  their  relative  title  may  be  left  undecided,  except  so  far  as  to  de- 
termine which  of  them  may  defend,  and  may  be  settled  in  a  subse- 
quent suit  between  them.  A  judgment  in  the  partition  suit,  that 
either  of  the  opposing  respondents  is  not  entitled  to  a  share,  shall  be 
binding  upon  him,  so  far  as  it  respects  the  partition  and  assignment  of 
shares ;  but  he  may  still  maintain  a  subsequent  suit  against  the  other 
claimant.  If  any  person,  who  has  not  appeared  and  answered,  claims 
a  share  of  the  land,  he  shall  be  bound  by  the  judgment,  so  far  as  the 
partition  is  concerned  ;  but  he  may  still  sue  each  of  the  other  tenants 
for  his  share,  each  being  liable  for  a  proportion  thereof.(f/)     Where  a 

(1)  See  sec.  36. 

(a)  So  an  attjaching  creditor  of  one  tenant.  And  a  partition  made  without  notice  to  him, 
is,  as  to  him,  void,  and  lie  may  levy  his  execution  as  upon  an  estate  in  common.  Mason  v. 
Luke,  19  Pick.  39,  'V\iliere  a  railroad  passes  over  the  land,  the  corporation  need  not  be 
made  parlies.     "Weston  v.  Foster,  7  Met.  297. 

(ft)  One  may  appear,  and  oliject  the  want  of  legal  notice  to  others,  and  partition  will  not 
be  ordered  auainst  him.     Ashley  v.  Briglitman,  2i  Pick.  258. 

(c)  See  Codman  v.  Tinkham,  15  Pick.  364. 

{d)  It  is  said,  a  petition  for  partition,  though  founded  on  statute,  is  in  the  nature  of  a  real 
action.  The  question  is  one  of  legal  title,  not  mere  equitable  interests.  But  a  judgment 
tlierein  is  no  bar  to  a  writ  of  right.  Blanchard  v.  Brooks,  12  Pick.  56.  See  Mallett  v.  Ban- 
croft, 1  Story,  474  ;  Colton  v.  Smith,  11  Pick.  311. 

Judgment  binds  the  right  ot  possession,  noi  prope7-ty.     Pierce  v.  Oliver,  13  Mass.  211. 


CHAP.  LV.]  TENANCY  IN  COMMON,  ETC—PARTITION.  607 

party  dies  before  partition,  and  a  share  is  still  assigned  or  left  hirn,  his 
neir  or  devisee  may  elaini  the  original  share,  (undivided,)  though 
made  a  party  to  the  petition.  Eviction  of  any  tenant,  from  the  share 
assigned  or  left  him,  by  paramount  title,  shall  entitle  him  to  a  new 
partition  of  the  residue.  Any  person,  having  a  lien  upon  the  share  of 
a  tenant,  shall  be  bound  by  the  partition,  but  retain  hTslien  u];on  the 
portion  allotted  to  his  debtor.(a) 

4.  In  New  nampshire,(l)  "any  person  interested  with  others"  in 
real  estate,  "  where  there  is  no  dispute  about  the  title,"  may  obtain 
partition  by  aj^plieation  to  the  judge  of  probate.  If  a  division  would 
be  injurious,  the  whole  may  be  assigned  to  one  of  the  petitioners,  he 
paying  or  giving  bond  for  the  amount  of  the  shares  of  other  parties. 
Partition  may  also  be  made  by  the  Superior  Court.  Notice  is  ordered, 
and  issues  of  fact  are  sent  to  the  Court  of  Common  Pleas.  Partition 
is  made  through  a  commiltee.  No  partition  shall  be  avoided  by  a  con- 
veyance after  entry  of  the  petition,  nor  unless  recorded  ;  nor  by  any 
lien  on  the  property.  Such  lien  attaches  to  the  portion  set  off'  to  the 
debtor.  If  set  off  to  one  not  having  a  legal  title,  this  portion  belongs 
to  the  legal  owner.  A  reversioner  after  a  life  estate  cannot  have 
partition. 

5.  In  Khode  Island, (2)  where  persons  own  together  in  fee,  or  where 
one  has  a  particular  estate,  in  connection  with  others  holding  a  fee  or 
a  freehold,  a  writ  of  partition  lies.  The  court  ascertain  the  rights  of 
the  parties,  and  partition  is  made  conformably.  The  proceeding  shall 
not  affect  any  reversion  or  remainder. 

(l)  N.  H.  L.  344;  Rev.  St.  413-6.    Brown  ,      (2)  R.  I.  L.  206. 
V.  Brown,  8  N.  H.  93.     See  Freuoh  v.  Eaton, 
15  N.  H.  337.  I 


A  judgment  is  a  bar  to  another  petition  for  the  same  object,  if  the  parties  and  tlie  title 
put  in  isHiie  or  necessarily  decided  are  the  same.  But,  where  a  former  partition  was  only 
of  a  part  of  the  land  held  in  comnion,  and  all  the  tenants  were  not  parties;  the  jud};ment  is 
no  bar  to  a  petition  lor  partition  of  tiie  whole  land,  to  which  all  the  tenants  are  made  par- 
ties.    Colton  V.  Smith,  II  Pick.  311. 

"Where  a  disseizor  of  one  tenant  has  obtained  partition,  the  tenant  may  either  recover 
possession  of  his  undivided  share,  treatincr  the  partition  as  void  ;  or  may  affirm  it,  and  re- 
cover the  part  assio^iied  to  his  disseizor.  Brown  v.  Wood,  17  Mass.  68. 
,  (a)  By  Statute  1854,  12,  joint  tenants,  &c.,  of  a  mill  privilcfre,  water  right,  or  other  in- 
corporeal hereditament  may  lie  compelled  to  make  partition,  cither  by  bill  in  equity-  or  the 
Statutory  process.  In  the  latter  case,  the  commissioners  shall  state  in  their  return  the  best 
mode  of  partition,  and  tiio  court  maj'  thereupon  pass  such  orders  and  decrees  in  equity  as 
may  be  necessary  to  ellect  justice  between  the  parlies. 

It  had  been  previousl}'  held,  that,  where  tenants  in  common  hold  a  mill,  dam  and  stream 
OS  one  entire  tenement,  one  cannot  have  psirtition  of  the  dam  and  water  alone.  Miller  v. 
Miller,  13  Pick.  237.     See  Bailey  v.  Rust,  3  Sliepl.  440  ;   Whittemore  v.  Shaw,  8  N.  II.  393. 

By  Statute  1850,  433,  partition  may  take  place,  where  remainders  or  interests  are 
limited  to  persons  not  in  being  at  the  time  of  application,  ujwn  notice  to  the  parents  or 
parent.     The  court  will  appjioint  a  nrxt  friend  to  act  in  the  case  in  behalf  of  sucii  per.«ons. 

By  Statute  1850,  458,  wiiere  the  pleadings  show  that  the  respondent  denies  tliO  plaintift's 
title  to  any  part  of  the  land,  and  claims  it  in  lee,  and  he  is  proved  to  have  held  it  under  a 
title  which  he  believed  to  be  good;  ho  shall  have  compensation  for  improvements  made  by 
him  or  those  under  whom  he  claims,  if  the  plaintilT  prevails,  as  in  case  of  real  actions,  by 
ch.  101  of  the  Revised  Statutes;  and  also  be  liable,  as  provided  in  that  chapter,  for  the 
plaintitrs  share  of  the  rent,  protits  and  damages.  If  after  the?e  are  deducted,  anything  re- 
mains due  to  him  for  improvoment.s,  it  shall  be  paid  before  judgment  of  partition;  and  the 
plaintiff  .'ihall  not  have-  any  rents,  kc,  accruing  after  tiie  verdict  and  belore  payment. 

Before  the  passing  ot  tiiis  statute,  a  respondent  had  no  remedy  for  improvements.  Mar- 
Bhall  v.  Crehore,  13  Met.  462. 


603 


TEXAXCT  m  COMMO^T,  ETC.— PARTITION. 


[CHAP.  LV. 


6.  Ill  Connecticut,(l)  the  writ  of  partition  is  expressly  provided. 
Provision  is  also  made,  that  the  guardians  of  minors,  with  the  aid  of 
persons  appointed  by  the  Probate  Court,  may  make  partition. (a) 

7.  In  Vermont,(2)  partition  is  made,  upon  petition,  by  commission- 
ers. If  the  land  cannot  be  conveniently  divided,  an  assignment  of  the 
whole  may  be  ordered  to  one  of  the  parties^  he  paying  such  sum  and 
in  such  manner  as  the  court  shall  direct ;  and  in  case  of  non-payment, 
execution  may  issue.  If  no  party  will  accept  the  whole,  the  land  shall 
be  sold.  The  sale  shall  bind  the  owners  and  all  claiming  under  them. 
The  partition  shall  be  valid,  though  one  owner,  without  the  knowledge 
of  the  others,  had  previously  conveyed  his  interest,  or  though  he  sell 
it  pending  the  petition,  and  though  the  grantee  of  one  of  the  tenants, 
whose  conveyance  was  not  recorded,  was  not  made  a  party.  And  a 
partition  in  such  case  shall  enure  to  the  benefit  of  the  legal  owner. 
Three  years  are  allowed,  to  any  party  without  the  State  and  not  notified, 
to  avoid  the  partition  for  good  cause.  The  death  of  a  party  does  not 
abate  the  process.  If  the  petitioner  has  no  title,  or  a  less  one  than  he 
claims,  he  is  liable  to  cost=!,  but  partition  may  still  be  made.(&) 

8.  In  Maine,(3)  a  writ  of  partition  is  authorized,  and  also  an  applica- 
tion for  this  purpose  to  the  common  law  courts,  who  shall  order  parti- 
tion hj  a  conmiittee.  Any  party  aggrieved,  if  absent  from  the  State, 
and  not  notified,  may,  within  three  years,  have  a  new  partition  upon 
complaint.     The  whole  may  be  assigned  to  one,  if  necessary. (c) 


(1)  Conn.  St.  293,  .351. 

(2)  1  Yerm.    L.   197-203;   St.   1851,    13; 
Harrington   v.  Barton,  11  Verm.  31;  Verm. 


Eev.  St.  231-4.     See  Hawley  v.  Soper,   18 
Verm.  320. 

(3)    1   Smith's  St.    145-50.     See  Ware  v. 
Hunnewell,  7  Shepl.  291. 


(«)  Partition  is  held  to  be  matter  of  right,  notwithstanding  any  difficulty  and  inronve- 
nience  attending  it  in  a  particular  case.  Scovii  v.  Kenned^',  14  Conn.  349.  It  maybe  ob- 
tained by  a  liill  in  ('hancery.  lb.  St.  1839,  30.  So,  though  ditTt-rent  parcels  of  land  are 
held  by  "different  titles.     St.  1839,  30.     See  St   1840,  27-8." 

(b)  Tbe  proceeding  is  an  adversary  one,  and  can  only  be  sustained  between  those  who 
could  be  suitors  in  respect  to  each  other,  in  the  common  law  courts.  A  husband  and  wife, 
tenants  in  common,  cannot  constitute  adverse  parties.     Howe  v.  Blanden,  21  Verm.  315. 

A  saw-mill,  mill-yard,  mill  pond,  and  the  utensils  of  the  mill,  are  not  subject  to  parti- 
tion. Brown  v.  Turner,  1  Aik.  350.  Actual  possession  is  not  necessary,  if  the  petitioner  is 
not  disseized.     Hawley  v.  Soper.  18  Verm.  320. 

(c)  The  owner  of  an  equity  of  redemption  in  possession,  and  one  interested  in  the  estate 
and  having  a  right  of  entry,  though  out  of  possession,  may  have  a  writ  of  partition.  Call  v. 
Barker,  3  Fairf  320;  Upham  v.  Bradley,  5,  422.  By  the  Revised  Statutes,  any  lien  upon  a 
share  attaches  to  the  portion  set  off  to  the  debtor.  Partition  does  not  bind  one  claiming  the 
whole  property,  who  h;^s  not  made  answer.  In  case  of  eviction,  it  shall  be  made  anew. 
Rev.  Sts.  547-^8  ;  Argyle  v.  Dwinel,  29  Maine,  29.  But  see  Foxcroft  v.  Barnes,  29  Midne, 
128.  Partition  must  l)e  predicated  upon  the  average  value,  as  well  as  quantity,  of  the  land. 
Field  v.  llanscomb,  3  Shepl.  3G5.  And  the  return  of  the  commissioners  must  show  this 
fact.     Dyer  V.  Lowell,  30   Maine,  217. 

The  return  of  commissioners,  that  they  have  sufficiently  notified  parties  interested,  within 
the  State,  is  not  conclusive  evidence  of  sui  h  notice  in  regard  to  the  time  and  place  of  parti- 
tion. The  court  shouhl  ascertain  whether  such  notice  has  been  given,  and  the  commis- 
sioners should  state  what  they  have  done;  whether  any  and  what  persons  were  known  to 
them  to  be  concerned  and  resident  in  the  State;  and  wliat  notice  was  given  to  each  of  them. 
Hathaway  v.  Peraon.s,  kc,  32  Maine,  13G. 

A  review  of  the  judgment  and  proceedings  can  be  granted  only  upon  the  application  of  a 
party  to  the  former  process,  or  one  representing  his  interest.  There  is  no  provision  in  the 
staluies,  authorizing  a  per.><on  interested  in  the  estate  to  be  first  admitted  a  party,  after 
partition  lias  been  ordered,  and  the  proceedings  tinally  closed.  Elwell  v.  Sylvester,  14 
Maine,  536. 


ClTAr.  LT.]  TENANCY  IN  COMMON,  ETC.— PARTITION.  009 

9.  In  New  York,(l)  any  joint  tenant,  &c.,  may  petition  the  court  for 
partition,  or  if  necessar}',  a  sale  of  the  land,(a)  The  petition  shall  de- 
scribe the  |)rennses,  set  forth  the  rights  of  all  persons,  having  either 
present  or  future,  vested  or  contingent  interests  therein,  and  be  verilied 
by  ulHdavit.     Every  person  interested  may  be  made  a  ]Kirly.(h)   11' any 

(1)  2  Rev.  St.  G17;  4  Kent,  365.  SeeCalei513;  Yan  Orman  v.  Phelps,  9  Barb.  500; 
V.  Hall,  2  Hill,  625;  Handy  v.  Leavitt,  3  Underliill  u.  Jackson,  I  Barb.  Ch.  73 ;  llorton 
Edw.  229;    Biaker  v.  Devereaux,  8  Paige,  |  v.  Buskirk,  1  Barb.  421. 

Commissioners  have  no  authority  to  assign  to  one  tenant  the  right  of  liauling  lumber 
across  the  land  assigned  to  another,  and  of  driving  lumber  on  the  stream  througli  such  land, 
:ind  using  the  dam  there ;  nor  to  prescribe  the  mode  of  keeping  the  dam  in  repair.  Dyer  v. 
Lowell,  30  Maine.  217. 

CtirUorari  lies  in  behalf  of  a  co-tenant,  although  not  a  party  to  the  record.     lb. 

Where  a  person  owns  an  utidivided  portion  (jf  lauds,  which  portion  is  severed,  and  set 
out  in  severalty  by  legal  proceedings,  his  title  adheres  to  and  follows  the  estate,  and  becomes 
limited  by  it.     Argylo  v.  Dwinel,  29  Maine,  29. 

Tne  undivided  interest  of  a  town  in  land  which  has  been  reserved  for  public  uses,  may  be 
legally  located,  after  the  same  has  been  sold.     lb. 

Tiie  subsequent  incorporation  of  the  town  will  operate  as  a  sanction,  on  the  part  of  the 
State,  of  sucli  location.     lb. 

There  may  be  partition  of  a  mill  and  mill-privilege.  Hanson  v.  Willard,  3  Fuirf.  142.  See 
Sts.  1848,  49. 

It  is  held,  that  the  whole  object  of  a  petition  for  partition  is,  a  partition  among  those  who 
have  titles  in  common.  Disseizors,  uidess  their  possession  has  been  long  enough  to  give 
them  a  title,  are  not  proper  parties,  and  their  equitable  rights  are  not  affected  by  the  pro- 
ceedings; and  an  entry  of  appearance  by  them  does  not  affect  their  claim  to  betterments,  in 
a  writ  of  entry  by  one  of  the  parties  to  the  partition,  the  tenants  proving  their  possession  and 
improvement  more  tliaii  six  years  before  filing  the  petition.    Tilton  v.  Palmer,  31  Maine,  486. 

Partition  will  not  be  granted  of  a  part  of  tiie  petitioner's  land.  Duncan  v.  Sylvester.  4 
Shepl.  388.  Two  or  more  tenants  may  join  in  a  petition,  and  have  an  assignment  in  com- 
mon.    Upiiam  V.  Bradley,  5,  423. 

(tf)  Tiie  petitioner  must  have  an  estate  entitling  him  to  immediate  possession.  Brownell 
V.  Brownell,  19  Wend.  367.  So  in  New  Jersey.  Stevens  y.  Enders,  1  Green,  271.  And 
this  is  the  ancient  English  doctrine.  4  Kent,  364,  n.  An  equitable  estate  is  sufficient. 
Hitclicock  V.  Skinner,  1  Hoffm.  21.  One  disseized  cannot  have  partition.  Giapp  v.  Bromag- 
ham,  9  Cow.  530. 

Where  the  owner  of  a  life  estate  in  the  share  of  one  of  several  tenants  in  common,  assign- 
ed his  property  for  the  benefit  of  creditors,  held,  the  assignees  were  entitled  to  partition,  but 
not  to  have  liie  premises  sold,  it  not  being  for  the  benefit  ofthe  other  owners.  Van  Arsdale 
V.Drake,  2  Barb.  599. 

A  suit  in  equity  for  partition  cannot  be  maintained  by  an  infant,  either  alone  or  jointly 
with  tenants  in  common  of  full  age.     Postley  v.  Kain,  4  Sandf.  Ch.  508. 

A  tenant  by  the  curtesy  initiate  may  file  a  bill  for  partition.     Riker  v.  D-nke,  4  Edw.  Cii.  668. 

A  suit  in  partition  cannot  be  maintained,  unles.s  the  plaintiff  or  petitioner  is  in  possession. 
O'Dougherty  v.  Aldrich,  5  Denio,  385. 

Where  land  is  devised,  subject  to  the  performance  of  a  condition  subsequent,  and  the  de- 
visee enters,  and  suffers  a  breach  of  the  condition,  a  party  entitled  to  an  undivided  part  of 
the  land,  in  consequence  ofthe  breach,  as  tenant  in  common  with  the  devisee,  cannot  main- 
tain partition  against  the  devisee,  but  must  first  estahiisii  liis  title  by  ejectment.     lb. 

A  purchased,  from  the  commissioners  ot  forfeitures  in  New  York,  an  undivided  half  of  the 
rent  and  rcver.'iion  of  a  certain  lot  of  land,  which  w:is  under-leased  to  B.  B,  at  the  time  of 
the  purchase  or  .soon  after,  was  in  possession  ofthe  whole  lot,  claiming  under  the  lease,  and 
also  chiiming  to  own  the  other  halt' of  the  rent  'ind  reversion.  A  brings  a  bill  (or  partition 
a;rainst  B.  Held,  he  could  not  claim  partition  during  the  continuance  of  the  lease;  that 
when  B,  ii>  po.^session  as  lessee,  acquired  the  rent  and  reversion  of  half  the  land,  tlie  tenancy 
as  to  tliat  half  was  merged  and  the  rent  extinguished ;  and  that,  if  the  lease  had  (or  any 
cause  liecome  forfeited,  A  must  first  recover  his  half  of  the  land  by  entry  or  action,  before  he 
could  sustain  this  bill.     Lansing  v.  Pine,  4  Paige,  639. 

{b)  A  decree,  in  a  suit  for  partition,  brou;;ht  by  tlie  committee  of  a  drunkard,  and  to  which 
he  is  not  a  p.irty.  will  not  transfer  the  legal  title  to  his  undivided  share,  set  otf  to  the  defend- 
ants in  severalty;  therelbre  he  should  be  made  party.     Gorliam  v.  Gjrhani.  3  Barb.  Ch.  24. 

Where  a  bill  in  equity  was  filed  by  such  committee  for  partition,  and  also  for  an  account 
of  rents  and  profit.'',  without  joining  him  as  a  party  comphtinani;  held,  tiie  omission  was  a 
ground  for  a  special  demurrer,  l)Ut  so  tar  as  tiie  bill  sought  an  accouiit,  it  was  matter  of 
equitv,  and  therefore,  so  considered  not  a  ground  of  general  demurrer. 

Vol.  I.  39 


610  TENANCY  IN  COMMON,  ETC.— PARTITION.  [CHAP.  LT. 

party  or  liis  interest  is  unknown,  uncertain  or  contingent,  or  if  the  title 
to  the  fee  depends  upon  an  executory  devise,  or  the  remainder  is  cou- 
tingent — these  facts  shall  be  stated.  Creditors  having  a  lien  need  not 
be  made  parties;  nor  shall  such  lien  be  affected,  except  that  it  shall 
attach  only  to  such  part  of  the  land  as  is  set  off  to  the  debtor,  and  be 
subject  to  his  share  of  the  costs  of  partition.  After  notice  of  the  peti- 
tion, any  party  interested  may  appear  as  a  respondent,  and  the  pro- 
ceedings shall  be  according  to  the  usual  course  of  a  suit  at  law.  A 
final  judgment  or  decree  binds  all  parties  named  in  the  proceedings, 
and  having  at  the  time  any  interest  in  the  premises,  as  owners  in  fee 
or  for  years,  or  as  entitled  to  the  reversion,  remainder  or  inheritance 
after  the  termination  of  any  particular  estate;  or  as  having  a  contingent 

Under  the  act  of  1813,  infiints  interested  in  estates  of  which  partition  is  sought,  should  be 
notified  of  the  suit,  whereby  the  court  acquires  jurisdiction,  of  wliich  it  is  not  ousted,  by  ne- 
glecting to  appoint  a  guardian  ad  litem  of  the  infants.  If  an  infant  appears  in  such  a  suit  by 
attorne}',  and  not  by  guardian,  the  proceedings  are  irregular  and  voidable,  but  not  void. 
Fowler  v.  Griffin,  3  SaudC  385. 

Tiie  heirs  of  the  ancestor,  from  whom  the  lands  descended,  and  those  who  have  succeeded 
to  their  rights,  are  proper  parties  to  a  bill  for  partition ;  and,  where  some  of  the  heirs  have 
parted  with  their  interest,  their  grantees,  and  not  themselves,  are  proper  parties.  In  case  of 
defect  of  parties  to  a  bill  under  tlie  code  in  New  York,  if  the  olijection  is  taken  in  the  an- 
swer, the  complainant  should  amend  l:)e.'bre  trial,  if  the  objection  be  true;  if  he  lies  by  till 
the  hearing,  the  court  can  allow  him  to  amend  in  its  discretion  on  payment  of  costs.  Van- 
derwerker  v.  Vanderwerker,  7  Barb.  221. 

Partition  cannot  be  made  of  lands  without  the  consent  of  all  the  tenants  in  common,  while 
a  third  person  has  an  irrevocable  power  of  attorney  to  sell  the  land  for  the  benefit  of  all. 
Selden  v.  Vermilya,  2  Sandf.  568. 

Where  lands  are  conveyed  to  a  trustee,  with  power  to  sell  for  the  benefit  of  all  the  own- 
ers, and  which  he  is  bound  to  do  on  the  request  of  one  of  the  owners,  partition  cannot  be 
decreed  without  the  consent  of  all  the  parties  in  interest.     lb. 

In  1843,  A,  owing  a  large  sum  of  money  to  B  and  C,  secured  by  his  bonds,  to  become 
due  at  different  times  thereafter,  conveyed  land  to  trustees,  in  trust  to  manage  the  same,  and 
sell  it  as  they  might  deem  best,  and  to  apply  the  income  and  proceeds  to  the  payment  of  the 
bonds  as  they  should  become  due.  In  case  of  default,  the  trustees,  on  the  request  of  either 
creditor,  wyre  to  sell  so  much  of  the  land  as  would  pay  the  amount  due  him  ;  tiie  land  shares 
to  be  sold  first,  and  afterwards  the  land,  and  the  surplus  to  be  paid  over  to  A.  In  1846,  A, 
in  consideration  of  a  release  by  B  and  C  of  his  personal  liability  on  the  bonds,  released  his 
residuary  interest  to  the  trustees,  and  procured  certain  outstanding  interests  to  be  conveyed 
to  tiiem.  Tiie  agreement,  then  executed  liy  all  tlie  parties,  provided,  that  all  the  property 
should  be  offered  for  sale  by  the  trustees,  unless  a  division  without  sale  should  be  agreed 
upon  without  unnecessary  delay.  Should  any  of  the  parties  not  consent  to  a  division,  then 
a  sale  was  to  be  made  under  the  trust  deed  of  1843,  on  the  requisition  of  the  other  parties, 
lor  the  payment  of  their  bonds,  which  were  due.  A  division  was  not  agreed  upon.  Held, 
even  if,  by  tiie  transaction  in  1846,  the  creditors  became  tenants  in  common  of  all  tlie  lands 
conveyed  in  1843,  and  tlie  trust  estate  ceased,  the  power  to  sell,  nevertheless,  continued  in 
the  trustees;  that  in  such  case  the  power  conveyed  to  them  by  the  instruments  of  1846, 
being  by  the  owners  of  the  laud,  was  not  a  power  in  trust,  but  a  simple  power  of  attorney, 
to  convey  the  land  for  the  benefit  of  the  owners  and  that  such  power  was  not  revocable  by 
one  of  such  owners  without  the  consent  of  all,  and  the  right  to  demand  a  sale  was  in  each, 
lb. 

Held,  also,  that  after  the  transactiorts  of  1846,  the  lands  were  held  under  a  valid  express 
trust  to  sell  for  the  benefit  of  the  creditors,  and  that  the  power  extended  to  the  liquidation  of 
all  such  bonds,  and  for  their  rateable  benefit,  without  preference.     lb. 

In  such  case  partition  will  not  be  decreed  of  the  lands  at  the  instance  of  one  of  the  credi- 
tors,    lb. 

In  case  of  trust,  where  all  the  trustees  are  parties,  if  by  the  death  of  the  sur^^iving  trus- 
tee the  trust  lias  devolved  on  the  court;  the  master  who  sells  will  be  appointed  a  trustee, 
for  the  purpose  of  passing  a  legal  title.  Cushmey  v.  Henry,  4  Paige,  315.  Allowance  shall 
be  made,  in  partition,  for  improvements.     Hitchcock  v.  Skinner,  1  HoBm.  21. 

Wliere  tliere  is  a  vested  estate  with  contingent  remainders  over,  in  trust,  to  persons  not 
in  esse,  and  ail  from  whom  such  after  comers  can  spring  are  before  the  court;  partition  may 
be  decreed.  The  limitations  over  are  not  affected  by  partition  or  sale.  They  are  protected 
and  attach  to  tlie  individual  shares,  which  by  the  decree  are  preserved  in  trust  according  to 


CHAP.  LV.]  TENANCY  TX  COMMON,  ETC.— PARTITION.  611 

interest  therein,  or  an  interest  in  any  undivided  sliare  of  the  premises, 
as  tenants  for  years,  for  hfe,  by  the  eurtesy,  or  in  do\ver.(rt)  Also  all 
persons  interested  but  uidcnovvn,  to  whom  public  notice  has  been  j^iven 
as  provided.  But  the  jud<^ment  does  not  all'i^'ct  persons  having  claims 
as  tenants  in  dower,  by  the  curtes}',  or  for  life,  in  Jiic  whole  of  the 
premises.  Incase  of  partition  by  equity  jurisdiction,  if  partition  will 
prejudice  some  of  the  parties,  compen.sation  shall  be  decreed  from  the 
others.  Whenever  there  is  a  denial  of  co-tenancy,  an  issue  shall  be 
formed  and  tried  by  jur}',  and  the  respective  rights  of  the  parties  ascer- 
tained. The  defendants  may  plead,  that  the  petitioner  or  petitioners 
were  not  in  possession  of  the  land.  One  defendant  may  deny  the  title 
of  another,  and  an  issue  shall  be  made  to  try  it.  New  parties  may  be 
admitted,  who  have  become  subsequently  interested,  or  known  to  be 
so.  The  court,  having  ascertained  the  respective  rights  of  the  parties 
by  default,  plea  or  verdict,  shall  declare  them,  and  decree  partition 
accordingly,  with  a  reservation,  however,  of  the  rights  of  those  tenants 
whose  interests  have  not  been  ascertained.  Partition  is  made  by  com- 
mission ers.(/>)  The  respective  shares  shall  be  designated  by  permanent 
monuments.  If  the  land  cannot  be  properly  divided,  it  may  be  sold 
by  order  of  court,  on  such  credit  as  they  may  direct,  the  price  to  be 
secured  by  bond  and  mortgage  of  the  land.(6')  Provision  is  made  for 
ascertaining  incumbrances  upon  the  land,  and  when  they  exist,  if  the 
premises  are  sold,  they  shall  be  first  satisfied  from  the  proceeds;  and 
incase  of  any  dispute  in  relation  to  them,  the  court  shall  proceed  to  try 
their  validity.  The  court,  in  their  discietion,  ma\'  order  that  any  life 
interest  in  the  land  be  sold,  or  otherwise.  If  sold,  they  shall  direct  a 
sum  in  gross  to  be  paid  to  the  party,  if  he  formally  assent ;  if  not,  an 
investment  shall  be  made  for  his  benefit  in  certain  designated  amounts, 
depeniling  upon  the  nature  of  the  interest.  No  commissioner  or  guar- 
dian shall  be  a  ])urchaser.  The  court  shall  decree  conveyance  by  the 
commissioners;  which  shall  bar  all  parties  named,  and  all  unknown,  if 
the  required  notice  has  been  given. (c/) 

the  will.  Cheeseman  V.  Tliorne,  1  Edvv,  629.  See  2  N.  Y.  Rev.  Sts.  322;  Manners  v. 
Cbarlesworth,  1  My.  &  K.  .130;  Jackson  v.  Edwards,  7  PMige,  386. 

(a)  It  has  been  hold,  that  tlie  wife  of  a  tenant  in  common  is  not  a  necessary  party.  If  par- 
tition be  made,  her  r'hjrUi  of  dower  attaches  to  the  share  allotted  to  the  husband,  without  any 
express  order  to  that  elfect,  and  aUhouy;h  she  is  not  a  party.  So  a  sale  was  held  not  to  bar 
her  dower,  the  statute  merely  providinjj,  that,  in  case  of  a«  existing  estate  in  dower  or  by  the 
curtesy,  certain  compensation  sliall  be  m  tde  in  case  of  sale;  and  an  inchoate  right  of  dower 
being  a  niero  possibility.     Matthews  v.  Mattliews,  1  Edw.  567. 

But  it  has  been  since  held,  that  a  sale  bars  the  right  of  dower;  especially  if  the  wife  be 
made  a  party,  though  she  ia  an  infant.  "Wiiiiinsoa  v.  Parish,  3  Paige,  653  :  Jackson  v.  Ed- 
wards, 7,  386. 

{b)  The  report  of  coramissiouers  ia  regarded  in  the  same  light  as  the  verdict  of  a  jury  on 
a  trial  at  law;  and,  where  tiiey  are  selected  by  the  parties  in  interest,  tiieir  report  will 
receive  greater  respect;  andjn  all  cases  it  will  not  be  disturbed,  but  upon  grounds  similar  to 
those  which  at  law  would  allow  of  a  new  trial.     Livingston  v.  Clarkson,  4  Edw.  Ch.  596. 

(c)  Or  the  use  of  the  property  may  bo  assigned  to  each  tenant  for  alternate  periods ;  or  a 
receiver  appointed,  and  tlie  protita  fairly  divided.     Smith  v.  Smith,  1  llofl'in.  506. 

(d)  By  Statute  1847,  556,  tlie  shares  of  several  co-tenants  may  be  set  off  in  common. 
"Where  there  are  contlieting  claims  as  to  .some  shares,  a  temporary  division  may  1)0  made 
until  sucli  claims  are  adjusted.  Where  there  is  a  right  of  dower  in  a  share,  the  widow  may 
be  a  party. 

By  Statute  1352,  411,  the  Supreme  Court  may  authorize  proceedintrs  in  behalf  of  an  in- 
fant tenant  in  common,  kc ,  for  partition,  or  may  sell  where  a  division  cannot  be  well  made. 
The  court  must  be  aatisllud  that  it  ia  for  the  interest  of  the  infant. 


612  TENANCY  IN  COMMON,  ETC.— PARTITION.  [CHAP.  LV. 

10.  In  Pennsylvania/!)  provisions  are  made  with  regard  to  a  writ 
of  partition.  When  the  inquest  appointed  to  nialce  partition  are  of 
opinion  that  it  cannot  be  done  without  injury,  they  shall  return  an 
appraisement,  and  the  court  may  adjudge  the  whole  to  such  tenant  or 
tenants  as  will  take  it  at  the  valuation,  and  the  sheriff  shall  execute  a 
conveyance  accordingly.  But  the  land  shall  be  subject  to  a  lien  for 
payment  of  the  price  to  the  other  tenants.  If  neither  of  the  parties 
will  accept  the  whole  land,  it  shall  be  sold  by  the  sheriff,  and  the  pro- 
ceeds brought  into  court  and  distributed.  Where  judgment  is  rendered 
by  default  upon  a  w^rit  of  partition,  any  party  interested  may  obtain  a 
reversal  for  good  cause  within  one  year  therefrom.  Where  equal  par- 
tition in  value  cannot  be  made  of  any  share  or  part,  the  sheriff'  and  in- 
quest may  equalize,  by  awarding  a  certain  sum  from  one  to  another, 
for  which  there  shall  be  a  lien  on  the  land.  Where  there  are  several 
defendants  to  a  writ  of  partition,  the  court  shall  award  a  mutual  parti- 
tion among  them,  as  well  as  to  the  plaintiff,  unless  all  of  them  declare 
a  wish  to  the  contrary.  One  having  only  a  life  estate,  whether  legal 
or  equitable,  is  entitled  to  partition. (a) 

11.  In  Mississippi,  Alabama  and  New  Jersey,(i)  any  co-parcener, 
joint  tenant,  or  tenant  in  common,  may  make  application  for  partition. 
The  court  shall  ascertain  the  number  of  joint  ow^ners,  and  a})point 
commissioners,  with  directions  to  divide  the  land  into  a  corresponding 
number  of  shares.  Where  the  bounds  of  any  tract  or  tracts  to  be  di- 
vided are  controverted,  if  the  controverted  part  is  valuable,  the  com- 
missioners shall  separate  it  from  the  residue,  and  so  make  partition  as 
to  attach  to  each  share  a  portion  both  of  the  controverted  and  the  un- 
controverted  part  of  the  land.  The  parts  or  shares  and  the  lots  Inid  off 
shall  be  numbered,  and  partition  afterw^ards  made  by  balloting  or 
drawing  of  tickets  in  the  manner  of  a  lottery  ;  at  wdiich,  on  the  ap[)li- 
cation  of  any  party,  a  judge  or  justice  shall  be  present.  The  whole 
proceedings  are  recorded,  and  are  effectual  to  make  partition  of  the 
land.  The  rights  of  any  one  having  a  paramount  title  to  the  land  are 
not  affected.  In  New  Jerse}'^,  the  act  does  not  apply  to  lands  of  general 
proprietors  of  the  eastern  or  western  divisions  of  the  State.    In  Alabama, 


(1)  Purd.  Dig.  682-5;  St.  1842,  2.34,  236; 
1841,  .353.  See  Sts.  1851,  613;  Clepper  v. 
Liver^'ood,  SWatls,  113;  Frohock  v.  Gus- 
tine.  8  lb.  121;  Roniiifj,  lb.  415;  Downer  v. 
Downer,  9  Watts,  60  :  Meliefify  v.  Dobbs,  lb. 


363;  Kannan  v.  Rimington,  10  Kng.  L.  & 
Eqn.  477;  Biddle  v.  Starr,  9  Barr,  461: 
Davis  II.  Norris,  8  Barr,  122;  Dana  v.  Jack- 
son, 6,  234 ;  Corm  v.  Huffey,  lb.  348. 


(a)  A  deed  of  partition  does  not  affect  the  title  of  the  parties,  but  only  fixes  tlie  boundaries. 
Goundie  v.  Nortliumpton,  &c.,  7  Barr,  233. 

A  bill  of  review,  to  correct  a  clear  mistake  in  fact,  on  which  a  decree  in  partition  was 
made,  will  lie  more  than  three  years  after  the  decree,  purchasers  not  having  become  inter- 
ested in  the  estate.     Gt-orfjes  Appeal,  2  Jones,  260. 

Wiiere  there  were  several  tenants  in  common,  and  one  died,  leaving  a  will  which  was 
contested  by  his  heirs;  an  act  of  assembl.v,  authorizing  partition,  and  directing  all  persons 
and  corporations  claimiiis  under  him.  whether  as  heirs  or  devisees,  to  be  made  p;.rties,  and 
their  purparts  to  be  set  out  and  conveyed  to  trustees,  for  such  of  them  as  may  lie  entitled, 
or  the  proceeds,  if  sold,  paid  to  such  trustee  giving  security,  was  held  to  he  constitutional; 
and  the  adverse  claunants  under  the  deceased  co-tenant  were  held  to  have  been  properly 
joined.     Biddle  v.  Starr,  9  Barr,  461. 

(b)  Ciianceilor  Ketit  say.s,  that  in  this  State,  according  to  the  bill  reported  by  Mr.  Scott, 
the  reviser,  in  1835,  partition  was  to  be  in  just  judgment  and  assitrnment,  and  not  by  lot. 
4  Kent.  364,  n.  In  Alabhma,  tlie  Chancellor  will  not  order  a  sale  lor  the  purpose  of  parti- 
tion, but  decree  the  execution  of  mutual  deeds.     Deloney  v.  Walker,  9  Por.  497. 


CHAP.  LV]  TENANCY  IN  COMMON,  ETC.— PARTITION.  gig 

minor  devisees  or  heirs,  LolJiug  jointly,  nuiy  liave  partition  on  apidica- 
tion  to  the  Orphan's  Court.  Jn  Mississippi,  a  partition  may  be  re- 
exaiiiincil  in  Clianeery.(l)  In  New  Jersey,  joint  tenants,  ka.,  may  be 
conipclliMl  to  make  j)artition,  like  eo-parecncrs,  by  writ  of"  partition. 
Sueh  jirocess  shall  bind  oid}'  parties,  their  heirs,  &c.,  whore  either  or 
both  are  owners  of  a  less  estate  than  the  fee.  If  the  tcTtunl  t/j  the  action 
or  defendant  does  not  appear  to  defend,  the  court  will  j)roeeed  to  make 
partition,  which  shall  conclude  all  persons  whatsoever,  whatever  right, 
&c.,  they  have  or  claim,  "although  all  persons  concerned  are  not  named 
in  any  of  the  proceedings,  nor  the  tenant's  title  truly  set  forth  ;"  with  a 
saving,  however,  of  one  year,  or  one  year  from  the  removal  of  any  dis- 
ability, for  the  purpose  of  setting  aside  the  i)artition.  Where  an  un- 
divided share  of  the  land  is  leased,  the  lessee  shall  be  tenant  of  the 
portion  allotted  to  the  landlord,  and  the  latter  shall  warrant  and  make 
good  the  title,  according  to  his  orii^inal  obligation.  If  the  demandant 
is  himself  a  lessee  of  the  tenant,  the  relation  shall  still  continue  after 
partition.  If  a  partition  would  be  injurious,  the  commissioners  may 
make  sale  of  the  land,  which  shall  be  valid  against  the  owners  and  all 
claiming  under  them,  but  no  other  persons.  The  proceeds  shall  be 
paid  to  the  parties,  or  if  one  is  out  of  the  State,  invested.  Where  one 
or  more  of  joint  tenants,  &c.,  are  minors,  the  Orphan's  Court  may  order 
partition. (*2) 

12.  In  Maryland, (3)(a)  the  Chancellor  may  order  partition  of  the 
estates  of  infants,  idiots,  &c.  Joint  tenants,  &;c,,  holding  by  devise,  may 
have  partition  by  application  to  court.  Commissioners  are  appointed, 
and  division  made  as  on  a  writ  of  p.irtition, 

13.  In  Delaware,(4)  partition  may  be  obtained  by  application  to  the 
Chancellor,  who,  after  notice  to  parties  interested,  shall  decree  partition, 
after  ascertaining  the  respective  shares  of  the  parties.  Commissioners 
are  appointed,  who  make  return  of  their  doings,  accompanied  with  a 
survey  of  the  land.  If  all  the  owners  join  in  petition,  no  notice  is 
requisite.  If  a  division  would  be  attended  with  injury  and  loss  to  the 
parties,  the  commissit-ners  shall  make  a  valuation  of  the  property,  and 


(1)  Miss.  Rev.  C.  232 ;  Aik.   Dig.  332-6 
1  N.  J.  L.  89. 

(2)  1  N.  J.  L.  299,  597;  N.  J.  St.  1835-6, 


cli.  114,  sec.  5;  5  lb.  1814,  ch.  109,  sees.  5-6. 
See  Hardy  v.  Summers,  10  Gill  &  J.  316; 
Hewitt,  3  Bland,  185;  Chaney  v.  Tipton,  11 


395  ;   1840-1,  82.    See  Van  Riper  u.  Bendan,    Gill  &  J.  253. 
2  Green,  132;  also  Miss.  L.  522.  (4)  Del.  St.  1829,   168;  1833,  242;   1837, 

(3)  2  Md.  L.   1794,  ch.  60,  aec.  8 ;   1797,  I  72.     See  lb.  1843,  527. 


(a)  An  objection  to  a  return  upon  a  comfnisaion,  that  the  commissioners  did  not  distribute 
the  estate  by  lot,  but  nt  their  own  discretion  assigned  the  several  shares  to  the  parties 
interested,  cannot  be  sustained  either  bj'  the  practice  of  the  court,  the  act  of  the  assembly, 
or  the  rule  of  tiio  Knghsii  Court  of  Chancery.     Cecil  v.  Dorsey,  1  Maryland,  Ch.  223. 

The  legislature  did  not  mean  to  conline  the  commissioners  to  a  particular  mode  of  making 
the  partition  ;  they  may,  if  they  plea.se,  award  to  each  of  the  parties  his  share  of  the  thing 
to  be  divided,  or  they  may,  Ht  the  proper  siatre  of  the  proceedings,  draw  lots;  and  their 
return,  otiierwisp  unexceptionable,  will  not  bo  set  aside,  because  they  adopted  either  of 
these  modes.     lb. 

It  is  a  fatal  objection  to  a  return,  that  the  value  of  the  estate,  in  money,  lias  not  been 
Btatcil  by  tlie  commissioners.     lb. 

The  act  requiring'  thirty  davs'  notice  of  the  execution  of  the  commission,  is  not  complied 
with  by  .staling  in  the  return  that  reasonable  notice  was  given  ;  but  the  conimi.«sioners 
must  say,  in  their  return,  either  that  they  gave  at  least  thirty  days'  notice,  or  due  notice, 
according;  to  law.     lb. 

As  to  the  eflect  of  partition  upon  title,  see  Coalo  v.  Barnev,  1  Gill  &  J.  324. 


614 


TENANCY  IN  COilMON,  ETC.— PARTITION. 


[CHAP.  LT- 


the  court  will  order  a  sale  by  a  trustee  appointed  for  that  purpose. 
Such  sale  shall  pass  the  estate,  subject,  however,  to  paramount  claims. 
The  proceeds,  Avith  the  same  exception,  are  paid  over  to,  or  invested 
for  the  benefit  of,  the  respective  parties.  Instead  of  a  sale,  one  or  more 
of  the  tenants  may  take  the  property  at  the  valuation,  either  paying 
the  price  immediately,  or  entering  into  a  recognizance  with  surety  for 
it  in  Chancery,  in  such  manner  as  the  Chancellor  shall  direct.  But  no 
such  assignment  to  one  or  more  shall  be  made,  where  there  are  conflict- 
ing claims  to  it.(rt) 

14.  In  Tennessee,(l)  public  notice  is  given  by  advertisement  before 
presenting  a  petition  for  partition.  No  other  notice  is  requisite,  and 
the  partition  shall  be  forever  binding  on  all  and  every  person  or  per- 
sons who  shall  or  may  have  claim  or  title  to  the  land  as  tenants  in 
corrimon,  &c.  Contrary  to  the  general  practice  of  giving  jurisdiction 
to  the  Courts  of  Probate  in  case  of  descent,  partition  may  be  made  of 
real  estate  held  by  the  heirs  of  an  intestate,  by  application  to  the  com- 
mon law  courts.  The  commissioners  appointed  to  make  partition,  may 
charge  the  more  valuable  dividend  or  dividends  with  such  sum  or 
sums  as  they  shall  judge  necessary  to  be  paid  to  the  dividend  or  divi- 
dends of  inferior  value,  in  order  to  make  an  equitable  division.  The 
return  of  the  commissioners  is  accompanied  by  a  survey  when  necessary, 
and  recorded,  and  the  return  and  appropriation  shall  be  binding  among 
and  between  the  claimants,  their  heirs,  &c.(2) 

15.  In  Illinois,(3)  partition  may  be  had  by  application  to  court 
through  commissioners.  It  is  provided  that  their  report  "shall  be 
conclusive  to  all  parties  concerned."  But  another  chapter  of  the 
Revised  Statutes  provides  that  reversioners,  &c.,  shall  not  be  affected. 
If  necessary,  the  land  shall  be  sold,  and  the  sale  Avill  bind  the  owners 
and  all  claiming  under  them. 

16.  In  Indiana, (4)  concurrent  jurisdiction  for  partition  is  given  to 
the  courts  of  law  and  of  equity.  It  is  made  through  commissioners. 
If  necessary,  the  land  is  sold.  They  to  whom  partition  is  made  release 
of  record  their  title  to  the  residue  of  the  land. 

17.  In  Missouri, (5)  partition  may  be  made  on  petition,  and  a  sale 
in  case  of  necessity.  No  commissioner  or  guardian  shall  purchase. 
Many  of  the  provisions  are  similar  to  those  in  New  York.  Adverse 
claims  may  be  presented,  and  in  such  case  the  proceeds  of  sale  retained 
by  the  sheriff,  and  a  legal  process  instituted  for  the  purpose  of  settling 
the  title.  A  part  of  the  land  may  be  divided,  and  the  rest  sold.  So  it 
ma}- be  divided  into  lots,  with  streets,  &c.  If  the  commissioners  report 
that  a  division  is  impracticable,  their  authority  ceases,  and  further  pro- 
ceedings will  be  conducted  by  the  sheriff. 


(!)  1  Scott,  641. 

(2)  1  Scott,  385-6. 

(3)  Illin.  Rev.  L.  238-9,  473. 

(4)  Ind.  Rev.  L.  387-90.  See  St.  1844-5, 
39;  see  Amory  v.  Carpenter,  8  Blaekf.  280; 
Carter  v.  Kerr,  lb.  373.     Commissioners  to 


make  partition  have  no  authority  to  lay  out 
the  laud  into  town  lots,  streets  and  alleys, 
without  consent  of  the  owners.  Kitchen  v. 
Sheets,  1  Smith,  27. 

(5)  Misso.  St.  422;   1838.  89-90;    1840-1, 
108. 


(a)  By  the  Revised  Statutes,  (p.  286,)  the  Superior  Court  has  jurisdiction  of  writs  of  parti- 
tion. It  may  set  off  to  two  or  more  of  the  tenants  iu  common.  The  jurisdiction  of  the 
Chancellor  is  also  affirmed. 


CHAP.  LY.] 


TENANCY  IN  COMMON,  KTC— rARTITION. 


615 


18.  In  Kentucky, (1)(^^)  where  all  or  a  part  of  joint  owners  have  an 
inheritance,  the  wiit  ot'  partition  lies.  Reversioners,  &c.,  shall  not  be 
afFectetl.  Provision  is  made  for  partition,  by  aj)plication  to  certain 
stawliiKj  commissioners,  appointed  generally  for  this  ])urposo.(/j)  Parti- 
cular provision  is  made  tor  the  case,  where  some  of  the  j^)arriesarc  non- 
residents. It  would  seem,  in  this  case,  that  no  partition  will  be  made, 
unless  there  is  a  contract  to  that  effect.  But,  in  the  case  of  residents,  no 
contract  seems  necessary.  If  no  division  can  be  had,  either  party  may 
enter  liis  proportion  of  the  land  with  the  commissioners,  and  save  a  for- 
feiture by  paying  the  tax  thereon. 

19.  In  Ohio,  partition  may  be  effected  by  petition  to  the  courts  of  law. 
There  may  be  a  sale,  if  necessary.  In  Arkansas,  a  process  for  partition 
is  provided,  to  which  all  persons  interested  sliall  be  parties,  and  which 
is  executed  by  commissioners.  If  partition  is  impracticable,  upon  a  re- 
turn of  tliis  fact,  a  sale  is  ordered.  Where  there  are  distinct  parcels,  or 
a  divi.sion  is  desirable,  they  are  sold  separately.  The  conveyance  is 
made  by  the  commissioners.  Owners  of  less  than  a  fee  have  the  same 
remedies  as  an  owner  in  fee-simple. (2) 

20.  In  Virginia,(3)  where  a  part  of  joint  owners  are  unknown,  par- 
tition may  be  had  in  Chancery,  reserving  to  the  unknown  proprietors 
the  amount  of  their  shares.  Where  defendants  are  either  absent  or  un- 
known, they  may  for  cause  rescind  the  partition  within  three  years. 
Partitions  shall  not  affect  persons  not  named,  unless  they  claim  as  joint 
tenants,  &c.,  with  those  who  are  named.  Where  a  partition  is  incon- 
venient, the  value  of  a  share  in  money  may  be  assigned  or  the  property 
sold.(c) 

21.  In  North  Carolina,(l)  partition  is  obtained  upon  petition.  The 
commissioners  may  charge  the  more  valuable  dividend  or  dividends 
with  such  sum  as  may  be  necessary  to  make  an  equitable  division  ; 
which,  however,  shall  not  be  paid  by  any  minor  tenant  till  he  comes  of 
age.  But  his  guardian  shall  pay  it  upon  receiving  assets.  A  court  of 
equity  may  order  a  sale,  where  partition  would  be  injurious.  So,  also, 
on  the  application  of  joint  tenants,  &c.,  stating  that  their  land  is  required 
for  public  uses.  The  proceeds  belonging  to  an)^  party  under  disabilit}'' 
shall  be  invested  for  his  benefit.  Where  land  jointly  owned  is  subject 
to  dower,  and  the  tenants  and  the  party  claiming  dower  apply  together 
for  a  sale,  the  court  of  equity  may  order  such  sale,  and  that  a  third  part 


(1)  2  Ky.  Rev.  L.  876,  1070.  See  Bates  v. 
Thornberrj,  5  Dana.  9  ;  Talbot  v.  Todd,  lb. 
204  ;  Seay  v.  White,  5,  555  ;  Borah  v.  Archers, 
7,  176. 

(2)  Ohio  St.  1831.  254.  See  Swan,  618; 
Goudy  V.  Shank,  8  Oliio,  415  ;  Ark.  Rov.  St. 
692-8. 


(3)  Va.  St.  1830,  99;  Code,  525. 

(4)  1  N.  C.  Rev.  St.  450-3.  See  Skinner,  2 
Dev.  &  B.  63;  Scull  v.  Jernigan,  lb.  144; 
Amis  V.  Amis,  7  Ired.  219  ;  Irwiu  v.  King,  6, 
219. 


(a)  It  is  held,  in  this  State,  that  if  one  tenant  has  made  improvements  on  a  portion  of  the 
land,  tliis  part  should  be  assipned  to  him — the  value  of  tlie  improvements  being  allowed  him. 
Sneed  v.  Atherton,  6  Daii.i,  231.  See  Powell  v.  Powell,  9  lb.  13.  In  making  partition  of 
land,  its  value,  as  aftected  by  locality,  is  to  be  taken  into  consideration,  as  well  as  the  quan- 
tity and  quality.     Hunter  v.  Brown,  7  B.  Mon.  283. 

(b)  III  this  respect,  the  law  of  Kentucky  seems  to  be  peculiar  to  that  State.  In  all  the 
other  States,  the  application  is  ma;le  to  some  court  or  a  judge  thereof. 

(c)  A  tenant  by  the  curtesy  purchased  the  share  in  the  land  of  one  of  the  reversioners, 
the  others  being  minors.  On  a  bill  in  equity,  filed  for  that  purpose  by  the  tenant  by  the 
curtesy,  partition  of  the  land  was  granted.     Otley  v.  McAlpiue's  Heirs,  2  Gralt.  340. 


QIQ  TENANCY  IN  COMMON,  ETC.— PARTITION.  [CHAP.  LY. 

of  tlie  proceeds  be  secured  for  tlie  benefit  of  the  latter,  or  ascertain  the 
value  of  the  life  estate  and  decree  payment  of  it  to  her  absolutely. (a) 

22.  In  South  Oarolina,(l)  joint  tenants,  &c.,  may  apply  for  a  writ  of 
2XirtUio7i,  which  shall  issue  to  commissioners. 

28.  In  Georgia,  the  statute,  after  reciting  that  it  would  be  inconve- 
nient 'to  pursue  the  method  of  dividing  lands  by  writ  of  partition,  as 
practiced  in  Great  Britain,  authorizes  parties  to  apply  to  the  court  ibr  a 
writ  of  partition,  to  be  devised  and  framed  according  to  the  nature  of 
the  case.  The  writ  issues  to  paiiitioners,  who  shall  proceed  to  make  a 
division.  One  year  is  allowed,  or,  in  case  of  disability,  one  year  from 
its  removal,  for  a  party  interested  to  set  aside  the  partition  for  good 
cause.(2)(i) 

(1)   2   Brev.   102.     See  Foster,  Rice,  17  ;  1      (2)  Prince,  541-2. 
Goodhue  v.  Baruwell,  lb.  198.  | 


(a)  A  judgment  establishes  the  title,  and  concludes  the  parties.  Mills  v.  Witherington,  2 
Dev.  &  B.  434.  Wliere  a  charge  is  imposed  upon  the  siiare  of  one  tenant  for  equality  of 
partition,  an  equal  division  being  impracticable,  tlie  land  is  primarily  liable,  and  if  a  note  is 
given,  it'is  only  collateral  security.  Jones  v.  Sherrard,  2  Dev.  &  B.  179.  So,  with  a  note 
of  the  husband,  the  land  belonging  to  the  wife.     lb. 

The  money  assessed  upon  any  lot,  to  produce  equality  of  value,  is  a  charge  upon  the  land 
itself,  into  whosesoever  hands  it  goes;  and  there  is  no  statutory  limitation  to  the  recovery  of 
the  money.     Sutton  v.  Edwards,  5  Ired.  Kq.  425. 

Upon  a  suit  for  partition,  a  sale  was  ordered  and  made,  and  the  money  ordered  to  be  dis- 
tributed amono-  tlie  tenants.  One  of  them  atterwards  petitioned  to  be  reimbursed,  out  of  a 
portion  of  said  monej'  which  had  not  been  distributed,  certain  advances  which  he  had  made 
for  taxes.  Held,  the  petition  could  not  be  allowed,  as  it  would  be  contrary  to  the  previous 
order  for  distribution.     Lewis,  7  Ircd.  Kq.  4. 

A  decree  of  partition  should  describe  the  estate  to  be  divided,  and  the  share  which  each 
tenant  should  have.     Ledbetter  v.  Gash,  8  Ired.  4G2. 

{/;)  In  Arkansas,  an  order  of  court,  appointing  commissioners  to  divide  land  without  peti- 
tion or  notice  to  the  parties  interested,  is  void.     Harris  v.  Preston,  5  Eng.  201. 

Confirmation  of  the  report  of  commissioners,  does  not,  of  itself,  without  decree  of  title,  or 
deed  trom  the  commissioners,  vest  a  legal  title.     lb. 

As  to  partition  in  Iowa,  see  Telford  v.  Barney,  1  Iowa,  575. 

An  erroneous  computation  or  inaccuracy  of  commissioners  may  be  corrected  by  the  final 
judgment  in  proceedings  for  partition.     Wright  v.  Marsh,  2  Greene,  94. 

A  judgment  cannot  be  attacked  collaterally,  on  the  ground  that  the  petition  did  not  show 
the  interest  of  unknown  owners  in  the  land.     lb. 

A  petition  for  partition  may  be  verified  by  affidavit  of  an  attorney.     lb. 


CHAP.  LYI.] 


WORDS  NECESSARY  TO  CREATE  A  i'EE. 


G17 


CHAPTER   L\'I. 

WORDS   NECESSARY  TO   CRKATK    ESTATES.     WORDS  NEGESSARY  IX  A 
DEED  TO  CREATE  A  FEE-SIMPLE  OR  A  PEE  TAIL. 


1.  Introductory  remarks. 

2.  Ufirs  necessHry  ia  a  deed. 

5.  Oriiriu  oFlho  rule. 

6.  Exceptions — couvej'ance  to  a  corpora- 

tion. 

8.  Omission   of  the  word   his — the   word 

heir. 

9.  One  clause  may  aOTect  another. 
10.  Words  o(  reference. 

IL  Releases. 


12.  Rule  in  equity. 

13.  Ilnirs  necessary  to  estate  tail. 

15.  0/ the  body — not  uece.ssary. 

1 6.  lleirs  mules. 

18.  Issue  pa.st  and  future. 
19-30.   Heirs  of  one  deceased. 

20.  Premises  and  habendum. 

23.  Remainder  on  lailure  of  heirs. 

24.  Limitatioi.s  to  husband  and  wife,  Ac. 
31.  Rule  in  the  United  States. 


1.  IIayixg  treated  of  the  several  estates  which  ma}^  be  owned  in 
land,  the  natural  association  ofsuljects  leads  us  now  to  a  consideration 
of  the  particular,  technical  language,  by  which  such  estates  may  be 
created  and  transferred.  It  will  be  seen  hereafter,  that  the  two  most 
important  modes  of  acquiring  a  title  to  real  property,  are  by  detd  and 
by  devise.  These  are  the  only  two  modes  in  which  the  construction 
and  elfect  of  language  cotne  into  question,  as  determining  the  quantity 
or  quality  of  interest  in  land  which  in  any  particular  case  is  created  or 
translerred.  We  shall  therefore  proceed  to  consider,  first,  what  words 
in  a  deed,  and  second,  what  wor>-s  in  a  devise,  are  requisite  to  pass  the 
several  estates  in  land  recognized  by  the  law. 

2.  With  regai'd  to  the  words  in  a  tleed  necessary  to  create  a  fee-simple^ 
it  is  the  general  rule,  that  no  other  expression  than  that  of  heirs  is 
sufficient  for  this  purpose.  Thus,  if  land  be  conveyed  to  a  u\2iX\  forever, 
or  to  him  and  his  assigns  forever^  or  his  executors.,  administrators  and 
assigns.,  or  in  fee-simple,  or  to  hold  so  long  as  the  grantor  arid  his  heirs  shall 
hold  other  lands  uhich  he  owns  in  fee,  or  to  "  his  only  proper  use  and 
behoof;"  the  grantee  will  take  only  a  life  estate.  So,  a  conveyance  to 
one  and  his  generation,  to  endure  so  long  as  the  waters  of  the  Delaware  shall 
run,  creates  only  a  life  estate.(l) 

3.  Grant  of  land  to  A,  to  continue  for  a  yard  to  build  vessels  in  by 
A  and  his  heirs  so  long  as  they  shall  see  fit,  but,  if  they  cease  to  use  it 
for  this  purpose,  the  land  not  to  be  sold,  but  remain  forever  to  B  and 
his  heirs.  Held,  the  woril  heirs  v/as  only  descriptio  personoi,  and  that  A 
took  a  lite  estate,  and  B  the  remainder  in  fee.(2) 

4.  Gift  to  a  son  to  hold  to  him  and  his  assigns  forever,  with  general 
warranty,  and  charged  with  the  payment  of  XlOO  to  the  brother  of  the 
donee.     The  deed  passes  a  life  cstatc.(3) 

5.  This  rule  is  of  feudal  origin.  Feuds  were  anciently  granted, 
chiefly  with  reference  to  the  personal  qualifications  of  the  grantee,  and 

(1)  Jones  V.  Doe,  1  Scam.  27G;  Bract.  17    terson  v.  McCousland,  3   Bland,  72;   Llogan 
b;    2  ("niise,  231;  2  (Jliit.  Black.  83;  2  Prest.    v.  Wulclier.  U  Mis.  177  ;  Wcidman  t'.  Matsh, 
on  Est.  4-5;  Jackson  v.  Myers,  3  John.  388;    16  Penn.  524;    Holiiday  i'.  Overton,  10  Eng. 
Clearwater  v.    Rose.  1   Blac.    137;    Gray  i'.    L.  &  Equ.  176. 
Packer,  4  Watts  AS.  17.     As  to  ^he  expres-  ^      (2)  Rutty  v.  Tyler,  3  Day.  470. 
sion  "'so  long  as  a  tree  grows,"  Ac,  see  Pat-  i      (3)  Wright  v.  Dowley,  2  Bl.  1185. 


618  WORDS  NECESSARY  TO  CREATE  A  FEE.  [CHAP.  LVL 

therefore  terminated  with  his  life,  unless  the  intent  of  the  donor  mani- 
festly appeared  to  the  contrary.  But  the  rule  is  subject  to  several  ex- 
ceptions, 

6.  By  a  conveyance  to  a  sole  corporation,  as  for  instance  a  minister 
and  Ills  successors,  or  to  a  corporation  aggregate,  without  the  word  suc- 
cessors, a  fee-simple  will  pass. (a)  But,  in  a  grant  to  a  sole  corporation, 
the  word  heirs  will  give  only  a  life  estate.  Lord  Coke  says,  as  the  heir 
doth  inherit  to  the  ancestor,  so  the  successor  doth  succeed  to  the  prede- 
cessor.(l)  Bat  the  word  successors,  connected  with  a  limitation  to  a 
natural  person,  does  not  enlarge  his  estate,  though  accompanied  by 
other  incidents  not  belonging  to  an  estate  for  life.  Thus  a  conveyance 
to  one  and  Iris  successors  in  trust  for  payment  of  debts,  giving  him  "at 
his  own  discretion  full  power  to  sell,"  does  not  pass  the  fee,  but  only 
an  authority  to  convey  in  fee.(2) 

7.  In  case  of  a  conveyance  in  trust,  without  words  of  inheritance,  a 
fee  passes,  if  necessary  to  effect  the  purposes  of  the  trust.(3)  Thus,  a 
deed  to  tiustees  and  their  successors,  in  trust  to  sell  and  convey  in  fee- 
simple  absolute,  vests  a  fee-simple  in  the  trustees.(4) 

7  a.  But  where  there  was  a  conveyance  to  trustees,  in  trust  for  A,  to 
the  use  of  the  first  son  of  the  grantor  on  the  body  of  A  lawfully  begot- 
ten, and  to  the  heirs  male  of  said  sou  lawfully  begotten,  and  the  grantor 
had  four  children,  a  son,  who  died  unmarried  and  intestate,  and  three 
daughters ;  held,  the  son  did  not  take  a  fee,  for  Nvant  of  a  limitation  to 
the  trustees  and  their  heirs.(5) 

8.  It  is  said  that  a  gift  to  a  man  and  heirs,  omitting  the  word  his, 
will  pass  a  fee-simple.  Upon  this  opinion,  however.  Lord  Coke  re- 
marks, "but  it  is  safe  to  follow  Littleton."  A  gift  to  two  persons  and 
heirs  passes  only  a  life  estate,  for  the  uncertainty.  It  was  formerly 
held,  that  a  grant  to  a  man  and  his  heir  created  only  a  life  estate.  But 
it  has  been  since  susfgested,  that  the  word  is  nomen  collectivum,  and 
sufficient  to  pass  a  fee.(6) 

9.  One  clause  in  a  deed  may  control  another  so  as  to  pass  a  fee. 
Conveyance  "to  the  use  of  all  and  every  the  child  or  children"  of  a 
marriage;  if  more  than  one,  as  tenants  in  common;  and  if  but  one, 
then  to  such  child,  his  or  her  heirs  and  assigns  forever.  Held,  a  fee 
passed  to  all  the  children ;  the  last  clause  operating  as  a  limitation  of 
all  the  preceding  words.  But  where  the  first  clause  of  a  deed  con- 
veyed land  m  fte-siinple,  and  on  condition,  both  indicating  an  intent  to 
pass  the  fee ;  and  a  subsequent  clause  conveyed  a  slave  to  the  same 

(1)  Co.  Lit.  8  b ;  Grammar,  ,tc.  v.  Burt,  111  (4)  Neilson  v.  Lajrow,  12  How.  (U.  S.)  98, 
Yerm.  632.  (5)  Pottovv  v.  Fricker,  5  Eng.  L.  &  Eq.  443. 

(2)  Algeria.  Fay,  12  Pick.  322.  (6)   Co.    Lit.   8  b;    Colthirst  v.   Bejushin, 

(3)  Welch  V.  Allen,  21  Wend.  14'7.  )  Plovvd.  28 ;  3  Inst.  8  b,  n.  4. 


(a)  "A  life  estate  to  an  ideal  beinpr,  bavin":  a  perpetual  and  uninterrupted  existence,  must 
be  co-extensive  with  a  fee  or  perpetuity,  and  words  of  limitation  could  not  extend  it."  Per 
Shaw,  Oh.  J.  Overseers,  &c.  v.  Sears,  22  Pick.  126.  Grant  to  the  justices  of  a  county 
and  their  successors.  Held,  the  title  vested  in  them  and  their  successors,  and  the  justices 
for  the  time  being  could  maintain  a  suit.     Justices,  &c.  v.  Thomason,  11  B.  Mon.  235. 


CHAP.  LVr.]  "WORDS  NECESSARY  TO  CRKATK  A  FKE.  019 

person,  his  heirs  and  assirjns  forever  ;  held,  tlic  grantee  took  only  a  liTc 
estate  in  the  land.     The  latter  elause  did  not  enlarge  the  lbrnier.(l)(c/) 

10.  It  seems,  wonls  of  direct  and  irnmcdiale  reference  to  some  other 
estate  will  pass  a  fee,  without  the  word  heirs.  As  where  a  ^rrantee  in 
fee  reconveys  the  lands  "as  fully  as  they  were  grantud  to  him;"  or 
where  one  conveys  two  acres  to  A  and  B,  to  hold  the  one  to  A  and  his 
heirs,  the  other  to  B  in  forra  aforesaid.     In  this  case,  Vt  takes  a  fee.(2) 

11.  It  will  be  seen  hereafter,  that,  in  certain  kinds  of  release,  a  fee 
may  pass  without  the  word  heirs.{S)     (See  Release.) 

12.  It  is  said  that  courts  of  equity  will  supply  the  omission  ol'  the 
word  lieirs,  when  the  intention  so  requires.  Thus  in  case  of  an  admin- 
istrator's deed.(4) 

13.  With  regard  to  the  words  necessary  to  create  an  estate  tail ;  in  a 
deed,  the  word  heirs  is  necessary  to  create  this  estate.  Thus  to  "  one 
and  his  issue,"  or  "eeed,"  or  "children,"  is  insufficient.(5) 

14.  On  the  other  hand,  where  the  words  "  heirs  of  the  body"  are 
used,  they  are  not  to  be  controlled  by  any  subsequent  expressions. 
Conveyance  to  one  and  the  heirs  of  his  body,  and  in  a  subsequent 
clause  a  power  to  sell  to  any  of  his  brothers.  Held,  the  latter  clause 
was  re|)Ugnant  and  void. (6) 

15._  But  no  technical  words  are  necessary  to  restrain  the  right  of  in- 
heritance to  heirs  of  the  body.  Thus,  the  words  "  of  his  body,"  or  the 
word  "  begotten,"  may  be  omitted,  if  equivalent  expressions  are  used. 
As,  "his  heirs  whom  he  may  beget  from  his  first  wife,"  or  "  the  heirs 
of  his  tlesh."(7) 

16.  A  conveyance  to  one  "and  his  heirs  males,"  creates  a  fee-simple, 
although  a  remainder  be  limited  afterwards.  It  is  said,  whoever  hath 
an  estate  of  inheritance,  hath  either  a  fee-simple  or  a  fee  tail  ;  but 
where  lands  be  given  to  a  man  and  his  heirs  males,  he  hath  no  estate 
tail,  and  therefore  he  hath  a  fee-sirnple.  But  by  act  of  Parliament,  an 
estate  may  be  effectually  limited  to  a  man  and  his  heirs  male,  so  as  to 
make  a  fee-sirnple  descendible  to  males  only. (8) 

17.  If  there  are  words  of  exclusive  reference  to  heirs  of  the  body,  as 
where,  after  a  limitation  of  uses  for  life  and  in  tail,  the  conveyance  is 
"  to  the  use  of  A,  and  of  the  heirs  male  of  the  said  A  lawfalbj  he- 
gotten  ;  and  for  default  of  such  issue,  &c.  ;"  an  estate  tail  passes.  But 
it  has  been  said,  that  this  case  was  decided  upon  the  ground  of  being  a 

(1)  noe  V.  Martin,  4  T.  R.  39;  Wiggs  v.  ■  (4)  Walk.  274;  Piatt  v.  St.  Clair,  7  Ohio, 
Saunders,  4  Dev.  &  B.  480.  165. 

(2)  Co.  Lit.  9  b,  n.  6 ;  2   Prest.  1,  2 ;  Doe  !      (5)  Co.  Lit.  20  a,  b;   1  Roll.  Abr.  587. 
V.  Lawton,  4  Bing.  N.  461  ;   Lytle  v.  Lytle,  '      (6)  Pearse  v.  Owens,  2  Ilayw  234. 

10  Walts,  259.  !      (7)  Co.  Lit.  20  b,  27  b;  Abraham  v.  Twigg, 

(3)  Co.  Lit.  10  a.  Cro.  Eliz.  478. 

1     (8)  Co.  Lit.  27  a,  and  n.  5. 

(a)  A  deed  is  also  sometimes  connected,  for  the  purpose  of  construction,  with  some  accom- 
panyin<r  instrument.  Tlius,  a  deed  to  a  married  woman,  to  have  and  to  hold  to  her  and  to  her 
heirs,  and  the  assii^'ns  <>(  her  heirs,  sul>jeet  to  an  n^rreemeiit  of  tlie  Siime  date,  bi-tween  the 
grantor,  tlic  grantee,  and  her  husband,  that  if  tlie  wife  should  die  and  leave  no  issue  who 
should  live  to  the  ago  of  twenty-one  years,  the  deed  should  be  void,  and  the  estate  go  to 
the  heirs  of  tho  grantor;  creates  an  estate  in  fee-simplo  in  the  wife,  depi'iident  on  the  con- 
dition of  leaving  children,  who  should  live  to  attain  full  age.  Westenberger  v.  Reist,  1 
Harris,  594. 


620 


WORDS  NECESSARY  TO  CREATE  A  FEE. 


[CHAP.  LVI. 


feoffment  to  uses,  and  upon  its  own  peculiar  phraseology,  and  is  of 
little  authority  where  other  words  are  used.(r) 

18.  Whether  the  words  "  thereafter  to  be  begotten,"  will  embrace 
issue  previously  born,  seems  to  be  a  doubtful  point.  Lord  Coke  says, 
"begotten"  will  embrace  future,  and  "  to  be  begotten,"  past  issue.(2) 

19.  An  entailment  may  be  made  by  a  limitation  to  the  heirs  of  the 
body  of  one  deceased  ;  as,  for  instance,  to  a  son,  and  the  heirs  of  the 
body  of  his  father,  who  is  deceased.(3) 

20.  A  conveyance  in  the  premises  of  the  deed  to  A  and  his  heirs, 
habendum  to  him  and  the  heirs  of  his  body ;  or  to  A  and  his  heirs, 
habendum  to  him  and  his  heirs,  if  he  have  heirs  of  his  body,  and,  if 
he  die  without  heirs,  that  it  shall  revert  to  the  donor ;  creates  an  estate 
tail.  Lord  Coke  says,  a  conveyance  in  the  premises  to  A  and  the  heirs 
of  his  body,  habendum  to  him  and  his  heirs  forever,  gives  A  an  estate 
tail,  with  a  remainder  in  fee.(4) 

21.  It  has  been  held  in  Connecticut,  that  the  former  limitation  passes 
a  fee-simple.(5) 

22.  Conveyance,  in  1793,  to  a  daughter  "  and  to  her  heirs  born  of 
her  body,"  "  to  have  and  to  hold  the  same  to  her  and  her  heirs  forever." 
The  grantor  covenanted  with  her  "and  her  heirs  as  aforesaid,"  that  he 
Vv^ould  warrant  and  defend  the  same  to  her  "  and  her  heirs  as  aforesaid." 
Held,  she  took  a  present  estate  tail,  which,  upon  her  death,  passed  to 
her  eldest  son. (6) 

23.  A  conveyance  to  A  and  his  heirs,  and,  if  he  die  without  heirs 
of  his  body,  remainder  over,  creates  an  estate  tail  in  A.  It  is  the  same 
as  if  the  limitation  were  to  A  and  his  heirs,  viz.,  io  the  heirs  of  his 
body. 

21:.  A  conveyance  to  a  man  and  woman  and  the  heirs  of  their  two 
bodies,  whether  they  be  married  at  the  time  or  not,  and  even  though 
each  is  married  to  some  third  party,  creates  in  them  an  estate  tail.(7) 

25.  Conveyance  to  the  use  of  a  wife  for  life,  remainder  to  the  use 
of  the  husband  for  life,  remainder  to  tli^  use  of  the  joint  heirs  of  their 
bodies.     Husband  and  wife  take  an  estate  in  special  fee  tail. (8) 

26.  A  conveyance  to  two  husbands  and  their  wives,  and  the  heirs  of 
their  bodies,  creates  a  joint  estate  for  life  and  several  inheritances — the 
one  husband  and  wife  taking  one  moiety,  and  the  other  husband  and 
wife  the  other.(9) 

27.  But  a  conveyance  to  a  man  and  two  women,  or  a  woman  and  two 
men,  and  the  heirs"^  of  their  bodies,  gives  them  a  joint  life  estate,  and 
each  of  them  a  separate  inheritance ;  because  they  cannot  have  one 
issue  of  their  bodies,  and  the  law  will  not  notice  a  possibility  upon  a 
possibility,  viz.,  that  the  man  shall  marry  both  women,  or  the  woman 
both  men,  successively. (10) 

28.  A  conveyance  to  a  man  and  his  wife,  and  the  heirs  of  the  body 
of  the  man,  gives  him  an   estate  in  tail  general,  and  her  a  life  estate. 


(1)  Beresford's  case,  7  Rep.  41 ;  Goodriglit 
V.  Goodridge,  Willes,  374. 

(2)  Canon's  case,  3  Leon.  5 ;  Co.  Lit.  20  b, 
and  n.  3. 

(3)  Lit.  sec.  30. 

(4)  1  Inst.  21  a. 

(5)  Chafifee  v.  Dodge,  2  Root.  205. 

(6)  Gorbin  v.  Healy,  20  Pick.  514. 


(7)  Winbisli  v.  Tailbois,  Plow.  53 ;  Para- 
mour V.  Yardley,  lb.  541 ;  Beck's  case,  Lit. 
R.  344;  Leigli  v.  Brace,  5  Mod.  266.  (See 
Idle  V.  Cook.  I   P.  Wms  70 ;  Co.  Lit.  25  b. 

(8)  Davis  V    Hayden,  9  Mass.  514. 

(9)  Co.  Lit.  25  b. 

(10)  lb. 


CHAP.  LVL]  WORDS  XECKSSART  TO  CREATE  A  FEE.  621 

If  it  is  to  a  man  find  his  heirs  begotten  on  the  body  of  his  wife,  he  takes 
an  estate  in  tail  special,  and  she  nothing.  If  to  husband  and  wile  and 
the  heirs  whieh  he  shall  beget  on  her  body  ;  they  take  a  joint  estate  in 
tail.  If  to  husband  and  wife,  and  the  heirs  0/  the  body  of  the  wile  by 
the  husband  to  be  begotten,  slie  takes  an  estate  tail.  To  whichever 
body  the  word  lieirs  inclines  by  the  limitation,  it  creates  alleseendible 
estate  in  such  person.  But  if  it  be  not  more  particularly  limited  to 
the  body  of  one  than  the  other,  but  inclines  to  each  alike,  then  it  creates 
a  descendible  estate  in  each  of  them.(l) 

29.  Conveyance,  executed  prior  to  the  Eevised  Statutes,  (in  Massa- 
chusetts,) to  husband  and  wile,  for  their  lives  and  the  lil'e  ot  the  survi- 
vor, and  to  the  heirs  of  their  bodies.     Held,  they  took  an  estate  tail. (2) 

30.  An  estate  tail,  as  has  been  stated,  (sec.  19,)  may  be  limited  to  the 
heirs  of  the  body  of  A,  A  being  dead  ;  and  it  will  vest  in  such  person 
as  answers  to  this  description  at  the  time;  and,  upon  his  death  without 
issue,  will  go  to  the  same  person  who  would  have  taken  it,  if  it  had 
been  originally  conveyed  to  A.  Thus,  if  A  have  lett  a  son  and  daugh- 
ter, the  son  takes  in  the  first  instance,  and  upon  his  dying  without  issue, 
the  daughter  takes  as  heir  of  the  body  of  her  father,  "^e?"  formam 
doniJ''  This  limitation  has  been,  described  as  "  of  a  compound  or  inter- 
mediate description  between  a  descent  and  purchase."  It  is  not  strictly 
a  descent,  because  A,  the  party  regarded  as  the  ancestor,  never,  in  fact, 
owned  the  estate.  Nor  is  it  strictly  a  purchase,  because,  upon  the  death 
of  the  first  owner,  it  does  not  pass  to  his  heirs,  but  to  the  heirs  of 
another.  "  In  point  of  acquisition,  it  has  the  quality  of  a  purchase, 
but,  in  regard  to  its  course  of  devolution,  it  has  the  quality  of  a  de- 
scenr."(3) 

31.  The  discussion  as  to  the  words  in  a  deed  necessary  to  create  a 
fee-simple,  has,  in  some  of  the  United  States,  been  rendered  quite  un- 
important by  means  of  statutory  provisions  upon  the  subject.  In  Ten- 
nessee, Iowa,  Mississippi,  Illinois(a)  and  Kentucky,  a  deed  of  land 
passes  the  fee-simple,  unless  express  worcis  or  the  construction  or 
operation  of  law  require  a  contrary  construction. (4)  So  in  Missouri, (5) 
unless  there  are  express  words,  or  a  necessary  implication  ;  in  Ala- 
ban:a,(())  express  word.s,  to  the  contrary.  The  same  rule  is  ad(j])ted  in 
Arkansas,  New  York  and  Virginia.(7) 


(1)  Lit.  sec.  26,  29  ;  1  Inst.  2G  a,  n.  3  ;  219 
a,  n.  3  ;  Feanie,  46 ;  Reps  v.  Boiiliam,  Yel. 
131,  and  n.  1. 

(2)  Steel  V.  Cook,  1  Met.  281. 

(3)  Mariileville'a  case,  Co.  Lit.  26  I).  220  a; 
Soutticot  V.   Stowel,    2    Mod.    207 ;   Foarne, 


(4)  Missi.  Rev.  C.  458;  Lawsof  Illin.  1837, 
14;  1  Ky.  Rev.  L.  443  ;  Teini.  Sta.  1851-2, 
40  ;  Iowa  Code,  cli.  78,  sec.  1200. 

(5)  Misso.  .-^t.  119. 

(6)  Clay's  Dig.  156. 

(7)  4  Kent,  7;  Ark.  Rev.  St.  188.     See 


110-12.  I  Olmstead  v.  Olmstead,  4  Comst.  58. 


'(a)  "Words  of  inlieritance  have  in  this  Slate  been  held  necessary.    Jones  v.  Bramblet,  I 
Scam.  276. 


622 


FEE  SIMPLE,  ETC. 


[CHAP.  LYII. 


CHAPTER   LVII. 

WORDS  IN  A  DEVISE  NECESSARY  TO  CREATE  A  FEE  SIMPLE  OR  AN 

ESTATE  TAIL. 


1.  General  principle. 

2.  What  words  sufficient. 
4.  Power  to  sell. 

14.  Devise  for  cliildren,  &c. 

18.  Reference  to  other  provisions. 

22.  Introductory  words. 

29.  "Estate,"  &c.,  meaning  of  terms. 

43.  Devise  charged  with  debts,  &e. 


56.  Devise  over,  on  devisee's  dying  under 

age. 
61.  Devise  to  trustees. 

66.  Devise  of  wild  lands. 

67.  Estate  tail,  by  what  words  created. 

70.  Debts  ciiarged  upon. 

71.  Remainder  after  a  devise  in  fee,  &c. 
96.  Enlargement  of  life  estate. 

110.  Rule  in  United  States. 


1.  The  rale  above  stated,  (eh.  56,)  which  requires  the  use  of  the 
word  heirs  to  create  a  fee-simple  bj  deed,  is  not  applicable  to  devises; 
in  which,  as  they  were  first  introduced  to  the  English  law  at  a  period 
when  the  feudal  rigor  had  been  much  relaxed,  a  more  liberal  construc- 
tion has  always  been  allowed  than  in  deeds.(l)  Hence  in  a  will,  any 
expressions,  which  show  an  intent  to  give  an  absolute  estate,  will  pass 
the  fee.  The  implication  need  not  be  a  necessary  one,  strictly  and 
mathematically  speaking,  but  so  far  necessary  as  it  clearly  arises  from 
the  reasonable  construction  of  the  will.(2)  "Words  which  only  de- 
scribe the  object  devised,  give  only  a  life  estate  ;  but  words  which  com- 
preheiid  the  quantum  of  the  estate,  pass  the  fee.(3)(a) 

2.  Thus,  a  devise  to  a  m.^n  forever  or  ia  fee-simple,  or  to  one  and  his 
successors^  or  "  his  blood,"  or  "  for  his  own  use,  and  to  give  away  at 
his  death  to  whom  he  pleases,"  will  pass  a  fee.(4) 

3.  The  words  "freely  to  be  enjoyed"  have  been  held  to  pass  a  fee. 
But  this  construction  has  been  doubted,  unless  there  are  other  expres- 
sions or  provisions  which  render  it  necessary. (5)(&) 

4.  A  devise  to  give  and  sell  passes  a  fee  ;  otherwise,  if  the  devise  is 
expressly  for  life. (6) 

5.  A  testator  devises  a  slave  to  his  daughter  for  life,  and,  at  her 
death,   to  give    it    to  any    of  her  children,   or   emancipate   it.     The 


(n  2  Blnck.  Com.  84  ;  Goodright  v.  Allin. 
2  Black.  R.  1041 ;  Morrison  v.  Semple,  6 
Binn.  97.  See  Vanderwerker  v.  Vander- 
■werker,  7  Barb.  221  ;  Franklin  v.  Harter,  7 
Blackf  488. 

(2)  I'er  De  Grey,  Ch.  J.,  2  BI.  Rep.  1041 ; 
Olmsted  v.  Harvey,  1  Barb.  102. 

{?,)  Per  Tilghman,  Ch.  J.,  6  Binn.  97  ;  Fox 
V.  Phelps,  17  Wend.  393  ;  Hammond  v.  Ham- 
mond, 8  Gill  &  J.  437.  See  Moody  v.  Elliott, 
1  Md.  Ch.  290. 

(4)  bro.   Abr.   Devise,   33;  Co.  Lit.  9  b; 


Corbet's  case,  1  Rep.  85  b;   Doe  v.  Roper,  11 
E.  518  ;   Codman  v.  Coffin,  2  Gush.  305. 

(5)  Loveacres  v.  Blight.  Cowp.  352  ;  Gates 
V.  Brydon,  3  Burr.  1895;  Goodright  v.  Bar- 
ron, 11  E.  220. 

(6)  Co.  Lit.  9  b;  Moore,  57  ;  Timewell  f. 
Perkins,  2  Atk.  102;  Moore  v.  Webb,  2  B. 
Monr.  283.  See  Codman  v.  Coffin,  2  Cush. 
365  ;  Carroll  v.  Carroll,  12  B.  Mon.  637  ;  Raw- 
linson  v.  Wass,  10  Eng.  L.  &  Kqu.  113;  Col- 
lins V.  Carlisle,  7  B.  Mon.  13  ;  Edmondson 
V.  Dyson,  2  Kelly,  307. 


(a)  In  case  of  a  direct  devise,  a  fee  may  pass  without  words  of  perpetuity,  though  the 
will  also  make  an  allowance  for  repairs  of  the  property  during  the  devisee's  life.  Other- 
wise, wliere  the  devise  is  merely  by  implication.     Fuller  v.  Yates,  8  Paige,  325. 

(h)  A  te.stator,  before  the  New  Yoik  Revised  Statutes,  devised  a  lot  of  land  to  his  wife 
during  her  widowhood,  and  on  her  death  to  be  "equally  divided"  between  his  t.vo  sons; 
-without  words  of  inheritance.  Held,  the  Bona  took  a  life  estate.  Edwards  v.  Bishop,  4 
Comst.  61. 


CHAP.  LYIL] 


HOW  CREATED  BY  DEVISE. 


G23 


daughter  died  without  exercising  licr  power.     Held,  she  took  a  life 
estate.(l) 

6.  But  where  a  testator  devised  the  whole  of  his  properly  to  his 
wife  for  life  ;  at  her  death,  one-third  to  his  daughter,  and  the  other 
two-thirtls  to  be  at  the  sole  and  enlire  disposal  of  his  wi(v,  trusting 
that  if  she  should  not  marry  again,  she  should  make  the  daughter  her 
heir;  and  the  wife  died  unmarried;  held,  she  took  an  absolute  estate 
in  the  two-thirds. (2) 

7.  When  a  devise  is  made  to  one  for  lifn,  with  a  power  of  appoint- 
ment hy  tvill,  or  to  leave  to  whom  he  j^le/xses — the  word  leave  importing  a 
devise; — he  acquires  merely  a  power,  and  can  execute  it  only  in  the 
mode  pointed  out.  But  if  land  is  devised  to  one  generall}',  with 
power  to  dispose  of  it  by  will  or  deed  ;  he  takes  a  fee  ;  although  there 
is  a  devise  over  of  what  may  remain  after  his  death.  Devise  :  "  My 
wife  shall  have  all  what  I  have,  (Sec,  to  do  and  act  as  she  thinks  good 
and  proper ;  ;dl  shall  be  let  in  her  power,  that  is,  into  the  hands  of  ray 
wife."     Held,  the  wife  took  a  fee  sirnple.(3) 

8.  A  testator  gives  to  his  wife  a  life  estate  in  his  lands,  and  sub- 
ject to  this  his  whole  property,  to  be  equall}^  divided  between  whoever 
she  should  make  her  heir,  and  his  brother.  The  wife  takes  a  fee  in 
one  moiety. (4) 

9.  A  devise  to  one  for  life,  with  power  to  sell,  if  necessary  for  his 
comfortable  support,  creates  a  life  estate,  with  a  contingent  power;  and 
a  party  claiming  under  a  sale  by  the  devisee,  must  prove  that  the  con- 
tingency has  ha[)pened.(5) 

10.  The  power  to  sell  real  estate  devised  will  not  create  a  fee-simple, 
unless  it  is  given  exclusively  for  the  devisee's  own  benefit.  It  is  not 
enough  that,  after  the  execution  of  certain  trusts,  the  residue  is  devised 
to  him.(()) 

11.  Devise  to  the  testator's  wife,  of  "  the  use  and  benefit  of  all  my 
estate,  real  and  personal,  and  should  the  income  prove  insufficient  for 
her  comfortable  support,  she  to  dispose  of  so  much  thereof  as  shall  be 
necessary  for  that  purpose ;  and  at  her  decease,  I  order  the  remainder 
to  be  equally  divided  to  and  among  my  children."  Held,  the  wife 
took  a  life  estate,  with  a  naked  power  to  sell,  if  the  income  should  not 
support  her.(7) 

12.  A  devise  in  fee  will  not  be  restrained  b}^  any  expression  of  the 
testatoi''s  desire,  that  the  estate  shall  be  dis{)osed  of  by  will  by  the 
devisee  in  a  certain  way.  Thus,  in  case  of  a  devise  to  A  and  her  heirs 
forever,  "in  fullest  confidence"  that  she  will  devise  the  property  to  the 
testator's  family  ;  A  takes  the  fee.(8) 

18.  One  seized  of  a  house  and  lands,  having  leased  them  for  ninety- 


(1)  Pate  V.  Barrett,  2  Dana,  426. 

(2)  lloj'  V.  Mesier,  6  Sim.  668.  See  Jack- 
son V.  Robliin-s,  16  John,  537  ;  Guilirie  i'. 
Gutlirie,  1  Call,  7. 

(?.)  Tomlinson  v.  Di-ihton.  1  P.  AVms.  171; 
Crort  v.  Slee,  4  Ves.  64;  Bradly  v.  Westcolt, 
13,  453  ;  Anderson  v.  Dawson,  15,  536;  Bar- 
ford  V.  Street,  16,  139;  Xannoek  v.  Horton, 
7,  398;  Irwin  r.  Farrer,  10,  87;  Goodlitle  v. 
Otway,  2  W'ils.  6;  Douglity  v.  Browne,  4 
Teatea,  179;  "Willis  v.  Bucber,  2  Binu.  464; 


Doe  V.  ITowland,  8  Cow.  277;  Ilelmer  r. 
Shoemaker,  22  Wend.  137  ,  Dice  v.  Shefl'er, 
3  \V.  &  Serp,  419;  Garrett  i'.  Garrett,  1 
Strobh.  Equ.  96;  Pulhani  v.  Byrd.  2  .^irobh. 
Eqii.  134;    llubey  v.  Bainett,  12  Miss.  3. 

(4)  Shcrmor  v.  Same,  1   Wash.  Vir.  266. 

(5)  Stevens  v.  Wiuship,  1  Pick.  318. 

(6)  Grout  V.  Townsend,  2  Hill,  554. 

(7)  Larned  v.  BridfiC,  17  Pick   339. 

(SJ  "Wriglit  V.  Atkina,  Tur.  k  Ru.-^s.  143. 


Q24:  FEE  SIMPLE,  ETC.  [CHAP.  LTII. 

nine  years,  devises  them  to  A  for  ninety-nine  years;  "the  said  A  to 
have  "all  my  inheritance  if  the  law  will  allow."  Held,  A  took  a  fee.(l)(a) 
14.  In  favor  of  children  and  grandchildren,  a  devise  to  trustees,  for 
their  benefit  during  minority,  may  pass  a  fee-simple  by  implication. 
Thus,  a  testator  devised  the  residue  ot  his  estate  to  trustees,  their  heirs, 

(!)  ^idlake  v.  Harding,  Hob.  2. 

(a)  A  testator  gave  all  his  estate  to  his  wife,  "in  the  fullest  manner,  subject  to  the  follow- 
ing provisions."  He  then  gave  certain  legacies,  and  desired  that  all  his  property  siiould 
continue  at  interest,  in  tiie  same  situation  as  at  the  time  of  his  death,  for  the  benefit  of  his 
wife,  and  that  his  wife  should  make  a  will,  and  divide  the  property  between  his  and  ber 
relations,  in  such  manner  as  she  should  think  they  deserved.  He  then  declared  that,  if  his 
wife  should  he  rendered  unable  to  make  sucli  will,  tiiis  property  sliould  be  sold,  and  the 
money  divided  in  the  manner  tlierein  mentioned.  He  declared  that  the  last  clause  was  '"not 
to  do  away  with,  or  prevent  his  wife  from  exercising  the  entire  riglit  over  his  property, 
should  she  be  enabled  to  carry  it  into  effect  in  the  way  he  had  left  it  to  her,  or  iu  any  other 
most  agreeable  to  herself"  The  widow,  by  her  will,  gave  some  legacies  to  her  relations, 
but  did  not  dispose  of  the  residue  of  her  estate.  Held,  the  property  bad  vested  absolutely 
in  the  widow,  and  went  to  her  next  of  kin.  Huskisson  v.  Bridge,  3  Eng.  Law  and  Eq.  180. 
Devise  to  A  and  her  heirs  forever,  and  if  she  should  die  without  heirs  and  intestate,  then 
to  B  and  C.  Held,  the  word  "  intestate"  implied  a  power  in  A  of  disposition  by  will,  and 
therefore  the  devise  over  was  void.     Armstrong  v.  Kent,  1  N.  J.  509. 

Devise  of  an  estate  to  "a  daughter  and  the  heirs  of  her  body;  if  no  children,  to  her  entire 
disposal."  Held,  the  devise  created  a  fee  conditional,  which,  on  the  daughter's  having  no 
children,  was  enlarged  into  a  fee-simple.  [Dargan,  C.  J.,  dissenting.]  Smith  v.  Hilliard,  3 
Strobh.  Eq.  211.  .  .    .  • 

A  testator  gave  all  his  personal  property  to  his  wife  absolutely  ;  but  a  codicil,  in  the  form 
of  a  letter,  addressed  to  his  wife,  contained  tiiese  words:  "I  hope  my  will  is  so  worded  that 
everything  that  is  not  in  strict  settlement  you  will  find  at  your  command.  It  is  my  wish 
that  you  should  enjoy  everything  in  my  power  to  give,  using  your  judgment  as  to  where  to 
dispose  of  it  amongst  your  children,  when  you  can  no  longer  enjoy  it  yourself.  But  I  sliould 
be'unliappy  if  I  thought  it  possible  that  any  one  not  of  your  family  should  be  the  better  for 
what  I  feel  confident  you  will  so  well  direct  the  disposal  of."  Held,  the  testator's  widow 
took  the  property  absolutely.     Williams  v.  Williams,  5  Eng.  Law  and  Eq.  Rep.  47. 

A  testator  devised  his  real  estate  to  his  wife,  to  be  at  her  entire  disposal;  but,  if  any  part 
thereof  should  remain  undisposed  of  at  the  time  of  her  decease,  the  same  should  go  to  his 
children,  to  be  equally  divided  among  them.  Held,  the  wife  took  an  absolute,  indefeasible 
estate  in  fee  in  the  laud,  and  the  limitation  over  to  the  children  was  not  valid,  either  as  a 
contingent  remainder  or  executory  devise.     ilcLean  v.  McDonald,  2  Barb.  534. 

A  devise  in  a  will,  before  the  act  of  1833,  in  Penn.sylvania,  of  a  plantation  "to  my  wife 
for  li(e.  and  at  her  decease  to  descend  on  my  three  daughters,  or  the  survivor  of  them,  share 
and  share  ahke.  the  personalty  to  descend  to  my  three  daughters  in  the  same  manner  and 
on  the  same  principle  as  my  real  estate,"  was  lield  to  pass  the  fee  to  such  of  the  daughters 
as  survived  llie  testator,  there  being  also  a  devise,  without  words  of  limitation,  of  a  part  of 
the  land  to  be  sold,  tlie  proceeds  to  be  distributed.     Johnson  v.  Morton,  10  Barr,  245. 

Devise  to  the  daughter  of  the  testator,  to  her  sole  and  separate  use;  she  to  have  "the 
entire  control  during  her  life"  over  the  property;  then  over.  By  a  codicil  he  directed,  that 
the  devises  to  his  daughter  should  vest  in  certain  trustees,  "  she  at  her  election  to  be  en- 
titled to  the  possession,  use,  management  and  control  of  the  property  during  her  life,  to  sell 
and  exchange  tlie  same,"  and  to  dispose  of  it  bj-  will  at  her  discretion,  satisfying  the  will  in 
other  respects.  Held,  the  codicil  did  not  enlarge  the  estate  given  by  the  will;  that  the 
daughter  took  a  life  estate,  with  power  to  defeat  the  remainder  ny  disposing  of  the  property. 
Rail  V.  Dotson,  14  Sm.  &  M.  17G. 

Bequest:  "My  will  and  desire  is,  that  after  all  my  just  debts  are  paid,  all  my  property, 
real  and  personal,  shall  remain  in  the  hands  of  my  wife  during  her  natural  life,  and  that  she 
shall  have  the  dispo.sal  of  one-half  of  it  at  her  death."  Held,  1.  The  wife  took  an  estate  for 
life  in  the  whole  property,  with  a  general  power  of  appointment  as  to  a  moiet}'.  unrestricted 
in  its  execution  as  to  time  or  mode;  and  she  having  died  without  exercising  this  pow  r;  2. 
That  the  whole  property  was  distributable  as  intestate,  one  moiety  to  her  next  of  kin,  the 
other  to  the  testator's.     PuUiam  v.  Byrd,  2  Strobh.  Eq.  134. 

Where,  in  a  marriage  settlement,  the  intended  wife's  estate  was  settled  on  herf.tr  her  life, 
wilii  remainder  to  her  children,  and  power  given  her,  with  the  consent  of  the  trustee,  to  sell 
and  dispose  of  the  property,  and  her  interest  therein,  as  she  saw  fit;  held,  the  power  to  sell 
being  restricted  and  qualified,  the  estate  given  was  but  a  life  estate.  Deadrick  v.  Armour, 
10  Hump.  588. 


CHAP.  Lvir.]  now  creatkd  by  dkvise.  G25 

executors,  &o.,  to  apply  the  2^>'od ace  and  iiiten'st  thereof  for  the  suj)port 
and  benelit  of  sueli  of  his  grandchildren,  by  his  liauglitcr,  as  sh.ju!d 
be  living  at  his  death,  until  they  became  of  age  or  married;  arul  di- 
rected tliat  their  father  should  be  trustee,  if  all  the  trustei.'s  shouhl  die. 
Held,  the  grandchildren  took  a  fee-simple;  on  the  gn>unds,  ihat  it 
could  not  be  supposed  that  provision  was  made  for  them  during  mino- 
rity, and  to  cease  at  the  very  time  when  they  would  most  need  it; 
that,  the  devise  being  made  to  the  trustees  in  fee,  the  whole  was  meant 
to  be  given  away  from  the  heir;  that,  if  the  father  should  become 
trustee,  and  his  wife  take  as  heir,  he  would  be  trustee  for  himself;  and 
that  the  word  produce  might  import  the  proceeds  of  a  sale  of  the 
property.(l) 

15.  This  case  has  been  doubted,  but  afterwards  approved  in  a  later 
case.(2) 

16.  A  testator  devised  the  residue  of  his  estate  to  trustees,  in  trust 
for  his  son  till  he  became  twenty-one,  and  then  the  trust  to  cease.  Held, 
the  son  took  the  whole  beneficial  interest  in  fee;  as  if  the  devise  liad 
been  to  trustc-s  in  trust  for  him  till  he  was  twenty -one,  then  to  him 
and  his  heirs.(3)(a) 

17.  Devise  to  A,  a  daughter,  of  two-thirds  of  the  homestead,  while 
single,  and  during  her  mother's  life;  at  the  mother's  death,  to  be  sold 
by  the  executors,  if  they  should  think  best,  and  the  avails  to  go  to 
A ;  if  not  sold,  the  use  to  go  to  her,  for  her  benefit.  Held,  A  took  the 
fee.(4) 

18.  A  fee-simple  may  pass  b}'  devise,  by  words  of  mere  reference  to 
another  devise.  Thus,  if  one  devise  Blackacre  to  A  and  his  heirs,  and 
Whiteacre  to  B,  to  hold  in  the  same  manner  as  A  holds  Blackacre — B 
takes  a  fee.  So,  also,  by  words  of  reference  to  a  purchase,  which  is  in 
fee.  Thus,  where  one  devises  "  ray  late  purchase  from  A,  as  also  four 
acres  of  woodland,  &c.,"  and  the  purchase  from  A  was  in  fee,  a  fee 
passes  in  the  whole  land.  So,  if  one  devise  **  to  my  eldest  son' and  his 
heirs  Blackacre  for  his  part;  Item,  I  devise  to  my  second  son  White- 
acre  for  liis  part:"  the  latter  takes  a  fee-simple. (5) 

19.  Devise  "  to  A  all  that  my  house  and  premises  at  P.  I  also  give 
to  A  all  that  my  land  in  P  and  R,  to  him,  his  heirs  and  assigns  for- 
ever."    A  takes  a  fee  in  the  house  and  premises.(6) 

20.  Devise  to  the  testator's  daughter  A,  of  the  southerly  portion  of 
his  farm,  and  to  his  daughter  B,  her  heirs  and  assign.?,  of  "that  part 
of  my  farm  called  C  H,  bounded,  &c.,  with  a  privilege  of  digging  ten 

(1)  Newland  v.  Shepard,  2   P.  Wms.  iO-i.  ]      (4)  Ingersol  v.  Knowlton,  15  Conn.  468. 
See  Doe  V.  Lean,  1   Ad.   &  EIL   (N.  S.)  229;        (5)  Perk.  561;  NeiJe  v.  Neide,    4  Rawie, 
Codmiin  v.  Coffin,  2  Cush.  365.  75  ;   I  Roll.  Rep.  HG9;  Goujrh  v.  Howards,  3 

(2)  Foniiereaii  v.  Fonnereau,  3  Atk.  316.      Bulst.  127  ;  i^milh  v.  Berry,  8  Oliio,  365.   See 

(3)  Real  V.  Powell,  Anib.  387;  Doe  i'.  Brooks  r.  Whitney,  11  Met.  413;  Areson  v. 
R<.t..r,  11  K.  518;  Doo  v.   Clayton,   8  Ves.    Areson,  3  Denio.  458. 

Ml'.  (6)  Fenny  v.  Ewestace,  4    M.  k  S.  58. 


(a)  A  ffjrtivri,  a  deviso  to  trustees  in  fee,  in  trust  for  a  person  till  he  beromes  ofafre,  with 
direrlion  that,  upon  his  reaching  the  Hf^e  of  21,  lliey  sufi'er  him  to  entirupon  and  enjoy  the 
estate — pas.ses  a  benetieial  fee-simple  to  the  cestui.  CI  a! lender  v.  Shepard,  8  T.  R.  597. 
See  Sniithwick  v.  Jordiiti,  15  Mass   113. 

Bui  the  mere  fact,  ol  a  devise  to  sons  after  a  life  estate,  does  not  prove  an  intention  to 
give  tlie  lee.     Olmsted  v.  Harvey,  1  Barb.  102.     See  Williams  v.  CasCon,  1  Strobli.  130. 

Vol.  L  40 


626 


FEE  SIMPLE,  ETC., 


[CHAP.  LVII. 


barrels  of  clams  yearly  at  the  soutlierlj^  end  of  my  farm."    Held,  B  took 
a  fee  in  the  privilege  as  well  as  the  land.(l) 

21.  A,  seized  of  lands  in  W,  devised  them  to  his  son  A  for  his  life, 
and  then  to  remain  to  C,  the  son  of  B,  except  B  purchased  another 
house,  with  so  much  land  as  in  W  for  C,  and  then  B  should  sell  the 
lands  in  W  as  his  own.  B  did  not  purchase  other  lands.  Held,  the 
word  ^jurcAase  imported  a  purchase  in  fee,  and  therefore  C  took  a  fee 
in  the  Jands  in  W.(2) 

22.  The  introductory  words  of  a  will,  indicating  an  intent  to  dispose 
of  a  testator's  whole  interest,  may  be  so  coupled  with  other  clauses,  in 
themselves  ambiguous,  as  to  pass  an  estate  in  fee-simple.  Devise — "AZ/ 
the  estate  I  have  I  intend  to  settle  in  this  manner — viz. :  my  estate  at  A  I 
give  to  mj^  dear  brother,  and  after  his  decease,  my  desire  is,  that  it 
should  be  disposed  of  to  B."'  Held,  the  will  passed  a  fee-simple,  such 
being  the  plain  intent  of  the  testator,  as  expressed  by  the  introductory 
clause.(3) 

23.  Devise :  "  as  touching  my  worldly  estate  wherewith  it  has  pleased 
God  to  bless  me,  I  give,  devise  and  dispose  of  the  same  in  the  follow- 
ing manner."  The  testator  then  gives  to  his  mother  all  his  estate  at 
l!^,  with  all  his  goods  and  chattels,  as  they  then  stood,  for  her  life ;  and 
to  his  nephew,  'V  D,  after  her  death,  if  he  would  but  change  his  name  ; 
if  he  did  not,  then  he  gave  him  20/.  per  year,  to  be  paid  him  for  his 
life  out  of  N  close  and  the  farm  held  at  R,  which  he  gave  her  upon  his 
nephew's  refusing  to  change  his  name,  to  her  and  her  heirs  forever. 
Held,  T  D  took  a  fee.(4) 

24.  But  no  operative  and  effective  clause  in  a  will  is  to  be  controlled 
by  ambiguous  words  in  the  introduction,  unless  demanded  by  a  reason- 
able interpretation  ;  nor  shall  a  subsequent  clause,  relating  to  a  parti- 
cular subject,  be  controlled  by  an  introductor}'  clause  not  relating  to 
that  subject.  Thus,  if  the  introductor}'  clause  is,  "as  to  all  my  worldly 
estate,"  still  the  will  does  not  pass  an  estate  that  is  clearly  omitted.(5) 

25.  "  As  touching  such  worldly  interest,  &c.,  I  give  all  my  lands  and 
tenements,  buildings,  &c.,  with  the  appurtenances,  &c.,  by  her  freely  to 
be  possessed  and  enjoyed."     Held,  only  a  life  estate  was  devised. (6) 

25  a.  Before  the  Rev.  Sts.  in  New  York,  a  devise  with  no  words  of 
inheritance  passed  only  a  life  estate  ;  and  such  devise  is  not  enlarged 
by  the  general  introductory  clause  of  the  will,  to  which  it  is  not  directly 
connected,  nor  by  a  general  charge  upon  the  whole  estate  of  the  testa- 
tor by  implication,  not  upon  the  person  of  the  devisee.(7) 

26.  Devise,  "as  to  what  worldly  goods,"  &c.,  then  all  the  land  to 
the  wife  for  life,  and  after  her  death  to  the  testator's  two  sons.  Held, 
the  sons  took  a  fee, (8) 

27.  The  intention  to  give  a  fee-simple  may  also  be  inferred  from  other 
parts  of  the  will  containing  devises  to  other  persons.     A  testator  devi- 


(1)  Lakeman  v.  Butler,  17  Pick.  436. 

(2)  Green  v.  Armsiead,  Hob.  65. 

(3)  TuBuell  V.  Page,  2  Atk.  37.  See  Bar- 
keydt  i;.  Barkeydt,  20  Wend.  576;  Knight 
V.  Selby,  3  Mann.  &  G.  92  ;  Miller  v.  Lynn, 
7  Barr,  443  ;  Franklin  v.  Harter,  7  Blackf. 
488. 

(4)  Ibbetsonv.  Beckwith,  Forr.  157. 


(5)  Orford  v.  Churchill,  3  Yes.  k  Bea.  67  ; 
13  Ves.  344;  Doe  v.  Clayton,  8  K.  144; 
Wrigiit  V.  Russel,  Cowp.  661  ;  4  Dane,  531 ; 
1  Dal.    226. 

(6)  Wheaton  v.  Andress,  23  Wend.  452. 

(7)  Vanderwerkerv.  Vanderwerker,  7  Barb. 
221. 

(8)  Wyatt  V.  Sadler,  Munf.  537. 


CHAP.  LVIL]  HOW  CRKATEP  BY  DEVISIv  627 

ses  lands  to  his  wife,  and  after  her  death  to  A,  one  of  his  sons.  Tic  then 
bequeatlis  to  15,  another  st)n,  a  legacy,  "as  his  proportion  of  the  es- 
tate."    A  takes  a  lee-simple.(l) 

28.  A  testator,  having  a  son  and  two  chiughters,  each  ol'  them  having 
children,  and  also  a  minor  son  unmarried,  devises  thfiulwcl ling-house, 
&c.,  valued  at  $8,500,  to  the  children  of  his  son  A,  after  A's  death,  and 
makes  similar  devises  to  his  daughters  and  their  children.  To  the  mi- 
nor son  he  devises  "  the  reversion  "  of  certain  lands  at  the  death  of  his 
wife,  valuing  the  land  at  $8,000,  but  ordering  that  it  be  estimated  at 
$6,000,  on  account  of  the  probable  delay  in  coming  into  possession  of  it. 
The  remainder  of  his  estate,  consisting  chiefly  of  stocks,  &c.,  and  a  wood 
lot  valued  at  $1,000,  to  be  equally  divided  among  the  children,  first 
charging  them  with  the  amount  received  by  them  or  their  children  in 
real  estate  according  to  valuation  in  the  will,  so  that  when  one  has  re- 
ceived an  excess  in  real  estate,  a  deduction  shall  be  made  from  his  share 
of  the  personal  property.  "The  wood  lot,  or  any  other  estate  which  I 
have  not  disposed  of,  ma}''  be  sold  at  the  discretion  of  my  executors." 
The  valuation  in  the  will  was  the  value  of  the  fee-simple.  The  children 
of  A  take  a  fee,  subject  to  his  life  estate.(2) 

28  a.  A  testator  devised  to  his  wife  for  life,  and,  at  her  decease,  to  his 
children,  their  heirs  and  assigns,  as  tenants  in  common ;  and,  in  case  of 
the  death  of  either  of  said  children,  his  or  her  share  to  descend  to  the 
children  of  said  child,  or,  if  said  child  should  die  without  issue,  then  to 
the -surviving  children  of  the  testator.  The  wife  died  in  the  testator's 
lifetime.  Held,  upon  the  death  of  the  testator,  his  children  took  an  in- 
defeasible estate  in  fee-simple.(3) 

2i).  In  a  devise,  the  word,  "  estate,"  signifies  the  interest  which  a 
man  has  in  lands,  rather  than  the  subject  of  ihat  interest ;  even  though 
there  are  other  words,  pointing  to  local  situation,  rather  than  the  amount 
of  interest.  Therefore,  "  all  my  estate,"  or  "  all  my  real  estate,"  passes 
a  fee-simple.  So,  "all  my  land  and  estate  in  A,"  because  the  word 
"land,"  would  give  an  interest  for  life,  and,  therefore,  the  word  "estate" 
would  be  superfluous  unless  it  passed  a  fee.  So,  "  my  estate  at  A," 
omitting  the  word  "all."  So,  "testamentary  estate,"  if  aided  by  the 
introductory  clause.(4)(a) 

30.  So  the  devise  of  "  all  the  estate  called  A,  containing  2,585 
acres  of  land,"  passes  a  fee.(5) 

(1)  Butler  V.  Little,  3  Greenl.  230.  [  Humphrey,  18  Pick.  537  ;  Fox  v.  Plielps,  17 

(2)  Bai<er  j;  Bridpe,  12  Pick.  27.  Wend  393;   Hammond  r.  Hammond,  8  Gill 

(3)  Caiawell  V.  Skiiton,  1  Harris,  152.  1  &  J.    437;   Maine    Rev.    Si.    378;   Foster   v 


(4)  Johnson  V.  Kerman,  I  Rolle  Abr.  834; 
Lane  v.  Hawkins,  2  Show.  388;  Barrj'  v. 
Edpeworth,  2  P.  Wms.  523 ;  Hungerlbrd  v. 
Anderson,  4  Day,  3G8  ;  Holdfast  v.  Marten,  1 
T.  R.  4  1 1  ;  Chichester  v.  O-xeiidon,  4  Ta>in. 
176;  Chorlton  v.  Taylor.  3  Ves.  &  B.  160; 
Holms  V.  Williams,  1  Root,  332 ;  Godfrey  v. 


Craige,  2  Dev.  &  B.  211  ;  Doe  v.  Roberts,  11 
Ad.  &  El.  1000  ;  Smith  i'.  Berry,  8  Ohio,  365  ; 
Doe  «.  Lawton,  4  Bing.  N.  461":  6  Scott,  303  ; 
Leavitt  v.  Woostt-r,  14  N.  II.  550  ;  QinMinell 
V.  Turner,  4  Eng.  L.  &  Equ.  84  ;  Bell  i'.  Scam- 
mon,  15  N.  H.  381. 

(5)  Lambert  v.  Paine,  3  Cranch,  97. 


(a)  In  a  deed,  otherwise  ;  more  especially  where  the  terms  of  description  and  the  limited 
authority  of  the  grantor  favor  such  construction.  Thus,  under  a  license  to  sell  all  the  real 
estate  ol  an  intestate,  his  iidininistratrix  sold  and  conveyed  "the  residue  of  the  deceased's 
dweliiiiir-house,  that  was  not  set  off  to  his  widow  as  dower  in  said  estate  :  reference  being 
always  had  to  the  returns  and  bounds  of  the  widow's  third.s,  for  a  jiarliciilar  discription  of 
the  bounds  of  the  premi.ses."  Held,  the  reversion  of  the  estate  «ssigued  to  the  widow  as 
dower  did  not  pass.     Kempton  v.  Swilt,  2  Met.  7P 


628 


FEE  SIMPLE,  ETC., 


[CHAP.  LVII. 


31.  A  testator  gave  to  his  wife  for  life,  "  all  that  estate  I  bought  of 
},[i-.  Al,"  then  to  his  son  A,  part  of  that  estate  called  S,  to  hiin  and  his 
heirs;  and  the  other  part  thereof  to  his  son  B  and  his  heirs;  and  '"to 
my  son  C,  all  that  estate  I  bought  of  Mr.  M  after  the  death  of  my  wife."' 
Held,  C  took  a  fee-simple  in  the  last  named  estate.  Lord  Hardwicke 
founded  his  opinion  on  the  grounds,  that  the  will  was  inartificiallj 
drawn  by  one  "  inops  consilii,^^  but  showed  a  clear  intent  to  distribute 
the  testator's  whole  estate;  that  the  want  of  the  word  "my"  before 
''  estate"  made  no  difference ;  and  though  the  word  "  estate"  was  used 
in  the  devise  to  the  wife,  yet  by  making  it  expressly  for  life  to  her, 
and  general  to  C,  the  testator  showed  that  he  used  it  in  different  senses 
in  the  two  clauses.(l) 

81a.  "I  give  and  bequeath  to  my  wife,  Clarissa,  all  my  estale,  both 
real  and  personal,  for  her  own  use  and  benefit,  reserving  only  sufficient 
to  pay  my  just  debts."     Held,  a  fee  passed.(2) 

81  h.  Devise,  "  I  giveHorsecroft,  my  estofe  that  I  now  live  in,  to  my 
son  J  P,  a  lunatic."     Held,  the  word  "estate"  passed  a  fee.(3) 

81  c.  A  devise,  ''  as  to  all  my  worldly  estate,"  of  a  house  to  A,  "  and 
the  remainder  of  my  estate,  real  and  personal,  among  my  children,  in- 
cluding A,"  would  pass  a  fee,  prior  to  the  Pennsylvania  statute  of 
1^-8.(4) 

Si  d.  So,  where  a  testator  gave  a  tract  of  land  and  a  slave  to  his  wife 
for  life,  and  the  balance  of  his  edate^  real  and  personal,  to  his  daughter 
for  life,  with  remainder  to  her  children  ;  held,  it  was  to  be  presumed 
that  he  intended  to  dispose  of  his  whole  estate,  and,  at  the  death  of  his 
wile,  the  laud  and  slave  went  to  his  daughter,  with  remainder  to  her 
children. (5) 

82.  On  the  same  principle,  the  words  "my  property,"  "all  my  real 
property,"  "all  my  right,  title  and  interest," or,  "part,  share  and  inter- 
est," "all  the  rest  and.  residue,"  "the  residue,"  "whatever  else  I  have 
not  disposed  ofj"  "the  whole  reversion,"  or  "remainder  of  my  lands," 
have  been  held  sufficient  to  pass  the  fee-si mple.(6)(a)  Devise,  "  as  to 
all  my  temporal  estate,  &c.,  I  give  and  devise  the  same  as  follows:" 
then  legacies  to  A,  with  direction  to  sell  real  and  personal  estate  for 
payment  of  debts  and  legacies;  concluding  with  "as  to  all  the  rest  of 
my  goods  and  chattels,  real  and  personal,  movable  and  immovable,  as 
houses,  gardens,  tenements,  &c.,  to  A."     Held,  A  took  a  fee-simple.(7.) 

88.  But  it  is  said  that  this  construction  will  not  be  given,  unless  the 
manifest  intent  of  the  testator,  as  gathered  from  the  will  and  the  circum- 


(1)  Bailis  ^.Txale,  2  Yes.  48. 

(2)  Tmcy  V.  Kilborn,  ?.  Cush.  557. 

(3)  Pottow  V.  Fricker,  5  Eng.  Law  and  Eq. 
443. 

(4)  Peppnrd  v.  Denl,  0  Burr,  140. 

(5)  Dea'Irick  v.  Armour,  10  Humph.  588. 

(6)  Hopewell  v.  Ackland.  1  Salk.  2:^9;  Nor- 
ton V.  Ladd,  Lutw.  761 ;  Bailis  v.  Gale,  2  Ves. 
48;  Nichoilsv.  Butclier,  18  Ves.  193;  Colez). 
Rawlinson,  3  Bro.  Pari.  Ca.  7;  Andrew  v. 
Soutbouse,  5  T.  R.  292  ;  Murry  v.  Wyse,  2 
Ver.  690;  Morrison  v.   Seniple,  6  Binu.  94; 


Fraser  v.  Hamilton,  2  Desaus.  Cha.  573 ; 
Grayson  v.  Atkinson,  1  Wils.  333  :  3  Crancb, 
130;  Holms  v.  William.').  1  Hoot,  332;  4  Day. 
368;  17  John.  281;  Brown  v  Wood,  17 
Mass.  68;  Fux  v.  Phelps,  17  Wend.  398; 
Roe  V.  Bacon.  4  M.  &  «  366  ;  Cuthhert  v. 
Lempriere,  3  M.  &  S.  158  ;  Dewey  v.  Morgan, 
18  Pick.  295;  Doe  t;  Lean,  1  Ad.  &  Kl.  (N. 
S  )  229;  Donovan  v.  Donovan,  4  Harring. 
177;  Harvey  v.  Olmsted,  1  Comst.  483;  Lip- 
pen  V  Eldred,  2  Barh.  130. 

(7)  Shaw  V.  Bull,  12  Mod.  596. 


(d\  As  to  the  words  "  lands,  tenements,"  &c,,  see  Moore  v.  Denn,  7  Bro.  P.  C.  607;  2  B. 
k  P.  247  ;  Doe  v.  Allen,  8  T.  K.  503. 


CHAP.  LVII.]  HOW  CREATED  BY  DEVISE.  629 

Stances  of  the  case,  so  require.  If  the  words  of  the  will  may  be  satislicd 
by  an  apijlication  to  personal  estate,  the  heir  shall  not  be  disinherited 
by  i  1  n j)lication .( 1  ){a) 

'64:.  But  where  the  wife  of  the  testator  was  made  devisee  for  life  of  a 
particular  estate  in  one  clause,  and  a  subsequent  one  devfsed  to  1ier, 
"all  the  rest,  residue  and  remainder  of  my  goods,  &c.,  together  with  my 
real  est.ite  not  herein  before  devised,  &c. ;"  held,  the  circumstance  that 
the  particular  and  residuary  devises  were  made  to  the  same  peison, 
raised  no  presumption  against  an  intent  to  give  her  a  fee  in  the  same 
lands  which  she  took  for  life,  inasmuch  as  the  testator  might  chang(?  his 
intent  even  while  making  the  will.  And  this  construction  was  con- 
firmed by  the  consideration,  that  where  certain  other  estates  were  de- 
vised for  life,  the  remainders  in  fee  were  expressly  given  over.(2) 

35.  A  testator  devised  the  income  of  shares  in  the  corn  market  of 
London  to  his  nephew  for  life  ;  and  all  the  rest  of  his  estates,  with  all 
moneys  in  the  stocks,  &c.,  to  A  and  others.  Held,  the  last  clause 
passed  the  reversion  in  fee  of  the  corn  market  shares.(3) 

36.  Devise  of  lands  to  A  and  B,  "  whom  I  appoint  my  executors  of 
all  that  I  possess  in  any  way  belonging  to  me,  by  them  Ireely  to  be  pos- 
sessed or  enjoyed,  of  whatever  nature  or  manner  it  may  be."  A  and  B 
take  a  fee-si mple.(4) 

35.  A  testator  bequeathed  to  liis  heir  one  shilling,  and  devised  to 
A  all  his  lands,  and,  in  the  next  clause,  all  his  goods,  chattels,  personal 
and  testamentary  estate.     A  takes  a  fee-simple. (5) 

38.  A  testator,  who  died  leaving  a  wife  and  children,  devised  to  his 
wife  "all  my  real  estate,  one  clock,  and  the  interest  of  $500  during  her 
lifetime."  The  rest  of  his  chattels  he  bequeathed  among  his  children, 
but  made  no  further  disposition  of  the  real  estate.  Held,  the  wife  took 
an  estate  in  fee.  So,  where  a  testator  devises  one  lot  to  A  his  heir  at 
law,  and  to  B,  all  the  residue  of  his  lands,  "  to  be  kept  in  the  name  and 
family  of  the  B's  as  long  as  can  be  ;"  B  takes  a  fee-simple. 

39.  Devise — the  interest  of  all  my  land,  property,  whether  houses, 
bank  stock  or  cash,  after  discharging  debts,  to  my  wife  ;  afterwards  to 
my  sister  C's  family,  to  go  in  heirship  forever.  C's  eldest  son  takes  a 
fee. 

40.  A  testator  devises  his  "  temporal  estate,"  after  payment  of  debts, 
as  follows  ;  to  his  eldest  son  A  all  his  lands  at  0  and  F  ;  to  his  son  B 
all  his  lands  at  C  ;  and  to  his  wife  and  daughter,  "  all  the  rest  of  Ids 
estate,  real  and  })ersonal."  Held,  the  fee  of  0  and  F  did  not  pass  by 
the  will,  but  descended  to  A. (6) 

41.  Devise  :  all  my  estate  to  be  thusdivided,  the  wife  of  the  testator  to 

(1)  Shaw  V.  Bull,  12  Mod.  596.     See  Are-  ,      (5)  Bradford  v.  Belfield,  2  Sim.  20-4. 

son  V.  Are.soii,   3  Deiiio,  453.  (G)  Aresoii    v.  Areson,  5  IIill,  410;   Doe  v. 

(2)  Ridouc  V.  Payne,  1  Ves.  10;  3  Atk.  Wood,  I  B.  &  A.  518;  Doe  v.  Smith,  5  M.  & 
486. 

(3)  Fletcher  v.  Smiton,  2  T.  R.  656. 

(4)  Thomas  v.  Phelps,  4  Kus  348. 

{a)  A  testator,  who  died  without  children,  devised  the  residue  of  his  estate,  both  real  and 
personal,  to  be  divided  between  his  wife  and  two  half-sisters,  "  as  llie  law  direct.s."  Held, 
the  wife  took  but  a  life  estate  in  one-half  the  realty.     Burton  v.  Burton,  4  Hnrrincr.  38 

So  a  devise  o{  a.  plantation  to  A,  subject  to  the  life  estate  of  his  niotljer  in  one-third,  with- 
out anything  else  to  indicate  an  intention  to  give  a  fee,  passes  but  a  life  estate.  Calhouu  v. 
Cook,  9  Barr,  22G. 


S.  126;  Kennour.  McRoberts,  1  Wash.  Vir. 
96. 


630 


FEE  SIMPLE,  ETC., 


[CHAP.  LVII, 


have  a  house  to  live  in,  and  garden,  and  one-third  of  all  the  estate,  remain- 
der over.  The  wife  takes  a  life  estate  in  the  house  and  garden,  aud  a 
fee  in  the  rest  of  the  property. (1) 

42,  Devise,  to  my  daughter  A,  of  all  my  residue  and  remainder  of 
real"  and  personal  estate,  goods,  &c,,  lands,  &c.  If  she  die  before  she 
comes  of  age  to  receive  said  legacy,  the  personal  and  real  estates  to  re- 
turn to  B,  to  whom  I  bequeath  it  on  the  above  proviso.  Held,*  A  took 
a  conditional  fee,  and  that  the  limitation  to  B  was  an  executory  devise. 
B  having  died,  and  then  A,  the  heirs  of  B  took  the  estate.  If  a  power 
of  disposition  had  been  given  to  A,  he  would  have  taken  an  absolute 
fee.(2Xa) 

4-^.  A  devisee,  charged  with  the  payment  of  a  sum  in  gross,  will  take 
a  fee-simple  in  the  lands  devised  to  him,  though  there  are  no  words  of 
inheritance.  But  if  the  charge  is  made  upon  the  land,  to  be  paid  from 
its  proceeds  oidy  ;  or  if  a  less  estate  is  expressly  limited,  this  construc- 
tion does  not  take  place.(6)  Even  a  personal  charge  is  said  to  be  not 
conclusive.     Its  effect  is,  to  supply  defects  of  expression  (.{"i) 

44.  A  testator  devises  to  his  son  A,  all  his  real  and  personal  estate, 
subject  to  bequests  ;  one  of  them  "to  his  granddaughter  B  $1,000,  to 
be  paid  her  by  A  when  she  becomes  18,  in  land  in  such  place  as  he 
can  buy  it."     A  takes  a  fee.(4) 

45.  The  comparative  value  of  the  land  devised,  and  of  the  amount 
to  be  paid,  does  not  affect  the  principle  above  stated.  Because,  how- 
ever much  the  former  may  exceed  the  latter,  if  the  devisee  takes  only 
a  life  interest,  it  may  terminate  before  he  has  realized  even  the  small 
sum  to  be  paid  ;  and  the  law  always  intends  a  devise  to  be  beneficial 
to  the  devisee.     Nor  does  it  affect  the  principle,  that  the  payment  is  to 


(1)  Holme  v.  Harrison.  2  Whart.  283. 

(2)  Ackless  v.  Scekright,  1  Bre.  46 ;  (1  Call, 
1.) 

(3)  6  John.  192  ;  Jackson  v.  Bull,  10,  148  ; 
Tanner  i\  Livingston,  12  Wend.  83;  Moor  v. 
Price,  3  Keb.49;  Grumble  v.  Jones,  11  Mod. 
208  ;  Burkart  v.  Buclier,  2  Binn.  455 ;  Co. 
Lit.  9  b. ;  Doe  v.  Fylde.s,  Cowp.  841  ;  Wel- 
lock  V.  Hammond,  Cro.  Eliz.  204;  Boraston's 
case,  3  Rep.  20  b;  Collier's  case,  6.  16;  Ack- 
land  V.  Ackland,  2  Vern.  687  ;  Stevens  v. 
Winship,  1  Pick.  318;  Lithgow  v.  Cavenagh, 


9  Mass.  105;  Fox  v  Phelps,  17  Wend.  393  ; 
SiiolSeld  V.  Zehmer,  6  Watts,  101 ;  Spraker 
I'.  Van  Alstyne,  18  Wend.  200;  Barkeydt  u. 
Barkeydt,  20  Wend.  576;  Bradford  v.  Per- 
kins, 23  Pick.  183  ;  Wait  v.  Belding,  24  Pick. 
129  ;  M'Lellan  v.  Turner,  3,  436  ;  Olmsted  V. 
Harvey,  1  Barb.  102  ;  Olmstead  v.  olmstead, 
4  Comst.  56;  Bell  v.Scammon,  15  N.  H.  381 ; 
Harden  v.  Hays,  9  Barr.  151 ;  Franklin  v. 
Harter,  7  Blackf.  488. 

(4)  Coonrod  v.  Coonrod,  6  Ohio,  114. 


(rt)  Devise  to  A  of  "  the  whole  of  my  property  in  P,"  &c.  To  B,  of  "all  my  other  lands 
in  H  and  M,  subject  to  the  yearly  payment  of  £150  to  C,  and  should  A  have  lawful  issue, 
i/ie  said  pro^erij/ to  be  equally  divided  between  her  lawful  issue."  Held,  the  words,  "the 
said  property,"  did  not  embrace  the  land  devised  to  B,  and  that  B  took  a  fee-simple.  Pep- 
percorn V.  Peacock,  3  Scott  X.  R.  651. 

[h)  "  It  is  my  will  and  order,  iliat  my  beloved  wife  A,  shall  be  master  of  my  estate,  both 
real  and  personal,  so  long  as  she  shall  remain  my  widow,  subject  to  the  payment  of"  lega- 
cies. Held,  the  wife  took  a  life  estate,  subject  to  be  defeated  l»y  her  marriage.  Beardslee  v. 
Bear  Islee,  5  Barb.  324;  Lt^avitt  v.  Wooster,  14  N.  H.  550;  Quenaell  v.  Turner,  4  Eng.  L. 
&  Equ.  84;  Bell  v.  Scammon,  15  N.  H.  381. 

In  one  case  it  is  said,  tiiat  if  the  charge  is  on  the  person  or  land,  the  estate  is  a  fee ;  if  on 
the  rents  andjtrofits,  otherwise.  Kennon  v.  M'Roberts,  1  Wash.  Vir.  96,  [infra,  sec.  52.)  The 
payment  must  be  either  a  2}ersonal  charge  or  a  condition  annexed  to  the  estate.  Van  Alstyne 
V.  Spraker,  13  Wend.  578.  A  mere  direction  or  injunction  to  the  devisee  does  not  amount 
to  a  condition  ;  but  the  words,  "  he  paying,"  will  create  a  condition  or  limitation,  (it  seems,) 
according  to  the  intent.     Fox  v.  Phelps,  17  Wend.  393. 

A  devise  of  all  the  estate,  after  payment  of  debts  and  legacies,  the  devisee  being  also  exe- 
cutor, passes  a  fee,  though  there  is  no  personal  charge.     Kellogg  v.  Blair,  6  Met.  322. 


CHAP.  LVII.]  HOW  CREATED  BY  DEVISE.  (531 

be  made  infuturo.  But  il'thc  payment  is  to  depend  on  a  contingency, 
the  rule  is  said  not  to  apply.  As  where  the  te.stator  leaves  botli  real 
and  personal  estate  and  charges  his  estate  generally,  so  that  the  lands 
are  not  liable  till  the  personal  estate  is  exhausted.  But  if  the  land  is 
first  devised,  the  devisee  "  paying,"  &c.,  and  the  personal  estate  is  be- 
queathed to  the  same  person  in  a  succeeding  clause ;  iImj  cluirge  being 
made  on  account  of  the  land  alone,  the  devisee  takes  a  fee.  So,  where 
a  testator  devised  a  house  to  his  wife,  and  the  remainder  of  his  property 
as  follows;  to  his  wife  one  part,  and  to  each  of  his  six  children  one 
part,  adding,  "my  mother-in-law,  A  B,  to  live  in  the  house  with  my 
wife  and  children,  or,  if  she  prefers  it,  to  receive  in  lieu  thereof  $200  ;" 
held,  the  widow,  by  acceptance  of  the  devise,  became  contingently 
liable  for  the  charge,  and  that  her  estate  was  thereby  enlarged  to  a  fee- 
6imple.(l) 

4(j.  So,  where  a  testator  devised  to  his  wife  "all  the  rest  I  have  in 
the  woi-ld,  both  houses,  lands,  goods  and  chattels,  stock  in  trade,  and 
all  other  things  belonging  to  me  ;"  ordering  her  to  sell  the  personal 
property,  and,  if  this  will  not  pay  the  debts,  the  real  estate;  held,  the 
wife  took  a  fee,  for  the  whole  property  was  devised  in  one  clause,  and 
the  order  to  sell  the  personalty  first  was  merely  directory,  and  what 
the  law  would  imply;  and  moreover  she  was  empowered  to  sell  the 
lands,  which  she  could  not  do  without  having  the  f'ee.(2)(«) 

47.  It  has  been  held,  that  where  a  devisee  is  indebted  to  the  testa- 
tor, and  charged  with  the  payment  of  debts,  on  that  ground  such 
charge  does  not  give  him  a  fee.  So  a  charge  upon  the  land  does  not 
create  a  fee-simple,  if  there  is  another  fund,  in  immediate  connection 
with  which  the  charge  is  imposed.(3) 

48.  A  devise  of  land,  charged  with  payment  of  debts  and  legacies, 
passes  a  fee-simple.  A  testator  gives  to  A  £20,  to  he  paid  out  of  his 
lands  within  one  year.  He  then  gives  other  legacies,  and  devises  all 
his  lands  to  B.     B  takes  a  fee.(4) 

49.  A  testator  devises  "all  the  residue,  &c.,  my  legacies  and  funeral 
expenses  being  thereout  paid."  Held,  although  the  residuary  words 
were  insufficient  to  pass  the  fee,  the  other  clause  gave  an  estate  in  fee- 
sirnple.(5) 

50.  Where  a  devisee  is  charged  with  ^  i^erijetual  payment^  he  takes  a 
fee-simple.  Thus,  where  he  is  to  pay  £8  annually  to  B  and  his  heirs; 
or  £6  yearly  to  the  merchant  tailors  of  London.  So  where  one  devised 
four  coats  to  four  boys  of  the  parish  of  D  forever,  and  all  his  lands,  <S:c., 
and  personal  estate  to  his  wile  and  her  assigns ;  held,  she  took  a  fee.((3) 
And  even  where  the  payment  is  to  be  only  for  the  life  of  the  third  per- 

(1)  Jacksoa'  v.  Harris,  8  John.  141 ;  Doe  ■  (4)  Ackland  v.  Ackland,  2  Ver.  637  ;  Tay- 
V.  Holmes,  8  T.  R.  1 ;  Coan  v.  Parmetitier,  10  I  lor  v.  Koc-her,  3  W.  k  Serp.  419. 

Barr,  72.     See  Vanderwerker  v.  Vanderwer-        (5)  Doe  v.  Richards,  3  T.  R.  356. 

ker,  7  Barb.  221.  (6)  Siiaihird  v.  Baker,  Cro.  Eliz.  744  ;  "Webb 

(2)  Goodiitle  v.  Maddern,  4  E.  496.  !  v.  HeHrinL'.  Cro.  Jac.  415;  Smith  v.  Tyiidal, 

(3)  Tanner  v.   Livingston,    12   Wend.   83  ;     2  Salk.  685. 
BurJiiigiiara  v.  Belding,  21  Wend.  463.  j 


(rt)  The  above-mentioned  rule  of  construction  may  sometimes  vest  a  fee-.-^implo  even  in 
another  devisee  than  the  one  charged  with  the  debt.  Where  a  testator  devised  the  upper 
half  of  certain  land  to  his  son,  and  the  lower  to  his  grandson,  without  words  of  iidieritance, 
and  charged  the.  son  witii  payment  of  Icg.icics ;  held," a  fee-simple  vested  iu  the  grandson,  as 
well  as  the  son.     Barkeydt  v.  Barkeydt,  20  Wend.  576. 


632 


FEE  SIMPLE,  ETC., 


[CHAP.  LVII. 


son,  or  is  ^vithout  an}-  certain  limitation,  the  devisee  takes  a  fee-simple. 
As  where  one  devised  lands  to  A,  conditionally  that  he  should  allow- 
to  his  son,  meat,  drink,  &c.,  during  his  natural  life.  So,  where  one 
devised  two  houses  to  his  son,  on  condition  that  he  should  pay  his  sis- 
ters £5  a  year,  with  a  clause  of  entry  on  non  payment.  So  where  there 
was  a  specific  devise  of  real  estate,  and  a  general  residuary  devise  of 
personal  property,  to  A,  he  paying  debts,  legacies,  &c.,  and  A  was 
made  executor,  and  among  the  legacies  was  an  annuity  to  B  for  her 
life,  to  be  paid  by  the  executors — held,  the  devise  of  real  and  personal 
propert}^  being  made  by  one  clause,  both  were  charged,  and  the  an- 
nuity, being  of  uncertain  duration,  must  have  a  fee  to  support  it.(l) 

51.  The  same  construction  has  been  given,  even  where  the  payment 
is  charged  rather  upon  the  land  than  the  person  of  the  devisee.  Tiius, 
where  the  testator  gave  two  tenements  to  A,  "she  paying  thereout  AOs. 
a  year  to  her  sister  B,"  held,  A  took  a  fee-simple.(2)  So  where,  alter 
the  introduction  "as  touching  all  such  temporal  estate,"  &c.,  the  testa- 
tor devised  a  house  to  his  grandson,  pajnng  yearly  and  every  year  out 
of  the  said  dwelling-houses  lbs.  to  his  granddaughter,  the  grandson  took 
a  fee.(3) 

52.  But  if  an  annual  sum  is  to  be  paid  from  the  rents  and  'profits,  the 
fee  does  not  pass.  So,  if  a  devise  is  upon  a  condition  to  be  performed 
during  the  life  of  the  testator,  this  is  not  suflScient  to  supply  the  want 
of  w^ords  of  inheritance. 

58.  Devise  to  A,  on  condition  that  he  shall  serve  the  testatrix  as  a 
coachman,  so  long  as  she  shall  require,  and  shall  at  all  times  conduct  to 
her  satisfaction.     A  takes  only  an  estate  for  life. (4) 

54.  So  it  has  been  held,  that  where  the  property  is  given  over  to 
others  upon  the  devisee's  death,  the  latter  takes  only  a  life  estate. (a) 

55.  A  testator  devises  his  whole  property  to  his  wife,  on  condition 
of  her  paying  to  his  mother  a  certain  annuitj^  for  her  life;  and  after 
the  wife's  death,  the  property  to  be  divided  equally  among  his  survi- 
vino-  children.  The  children  all  died,  living  the  widow,  who  married 
again  and  died.     Held,  she  took  only  a  life  estate.(5) 

56.  A  devise  to  one  generally,  with  a  limitation  over  if  he  die  under 
age  and  without  issue,  may  pass  a  contingent  fee-simple  to  the  first 
devisee. 

57.  Thus  w'here,  after  the  introduction  "  as  to  m}^  worldly  estate," 
the  testatrix  gave  to  h^r  son  A  a  certain  house,  and  if  he  died  in 
minority,  to  her  three  daughters — held,  the  construction  must  be,  that 
if  A  lived  till  21,  he  should  have  the  right  to  dispose  of  the  property 
himself;  if  not,  the  testatrix  disposed  of  it.  Therefore,  A  took  a  fee- 
simple.(6) 

58.  A  testator  devised  to  the  two  children  of  his  brother,  when  they 


(1)  Lee  V.  Stephens.  2  Show.  49 ;  Reed  v. 
Halton,  2  Mod.  25;  Goodright  v.  Allin,  2 
Black.  R.  104L 

(2)  Baddeley  v.  Leppingvvell.  2  Burr.  1533. 

(3)  Goodright  v.  Stocker,  5  T.  R.  13  ;  (An- 


drew V.  Southouse,  5  T.  R.  292.)     Harvey  v. 
Olmsted,  1  Com.st.  483. 

(4)  Farrar  v.  Ayres,  5  Pick.  404. 

(5)  Joslin  V.  Hammond.  3  Mylne  &  K.  110. 

(6)  Frogmorton  v.  Holyday,  3  Burr.  1618. 


(a)  On  the  other  hand,  where  a  will  provided  tliat  the  executors  should  pay  the  debt.?, 
and  devised  one  farm  to  A,  and  others  to  B,  C  and  D,  making  A  and  B  joint  executors  and 
residuary  legatees;  held,  A  took  a  life  estate.     Doe  v.  Roberts,  1  Mees.  &  W.  382. 


CHAP.  LVII.] 


HOW  CREATED  BY  DEVISE. 


633 


reached  21  years;  -but  if  either  died  a  minor,  the  survivor  to  be  heir 
to  the  other.     Ueld,  the  devisees  took  a  fee.(l) 

59.  A  woman  devised  to  her  grandchildren  as  tenants  in  common. 
If  either  died  under  age,  without  leaving  issue,  the  survivor  to  have 
his  share.     Held,  they  took  a  fee.(2) 

60.  A  testator  devises  to  his  daughter  ±\.  all  his  residue  and  remainder 
of  personal  and  real  estate,  goods,  &c.,  lands,  &c. ;  and  if  she  die  "  be- 
fore she  comes  of  age  to  receive  said  legacy,  the  personal  and  real 
estate  to  return  to  B,  to  whom  I  bequeath  it  on  the  above  proviso." 
Held,  that  A  took  a  conditional  foe,  which  expired  upon  her  dying 
under  age  (3) 

61.  Where  a  devise  is  made  to  trustees,  if  the  purposes  of  the  trust 
cannot  be  satisfied  without  having  a  fee,  tiiey  will  take  this  estate, 
though  no  words  of  inheritance  are  used.  And  it  is  enough  that  there 
are  purposes  which  by  possibility  could  not  be  answered  oiherwise.(«) 

62.  Thus,  a  devise  of  land  to  an  executor,  to  be  sold  for  payment  of 
debts  and  legacies,  with  power  to  convey  in  fee,  passes  to  him  a  fee- 
simple  in  trust.(-i) 

63.  A  testator  devises  all  his  real  and  personal  estate  to  trustees, 
their  executors,  administrators  and  assigns,  in  trust  to  pay  ani^uities 
and  large  legacies,  first  from  the  personal  estate,  and  if  that  were  in- 
sufficient, "  by  and  out  of  the  rents,  issue  and  profits  arising  by  the  real 
estate."  Several  of  the  legacies  were  payable  within  a  year  from  the 
testator's  death.  Held,  it  was  the  evident  intent  that  tlie  trustees  should 
have  power  to  sell  the  real  estate  for  payment  of  the  legacies  and  an- 
nuities, and  therefore  they  took  the  fee.(5) 

64.  A  testator  bequeaths  several  small  annuities,  some  for  life,  others 
in  fee,  to  be  paid  by  his  trustee  A  every  year.  He  also  gives  to  his 
trustee  and  executor  £b  to  build  a  tomb  for  him,  he  and  his  heirs  al- 
ways to  keep  it  in  order;  and  appoints  A  his  sole  executor  and  trustee. 
Hekl,  the  real  estate  was  subject  to  trusts,  some  of  which  were  in  fee, 
and  therefore  the  trustee  should  take  an  estate  co-extensive  with  the 
charges,(6) 

^b.  But  where  a  devise  is  made  to  trustees  for  a  limited  purpose,  re- 
mainder to  the  persons  to  whom  the  beneficial  interest  is  given,  the 
legal  estate  of  the  trustees  ceases  upon  the  fulfilment  of  such  purpose, 
and  vests  in  the  remainder-men. (7) 

QQ.  In  all  the  instances  above  named,  where  an  estate  in  fee  has  been 
created  without  words  of  inheritance,  this  construction  has  resulted 
from  the  terms  of  the  will  itself.  The  same  construction  may  arise 
from  the  nature  of  the  property  devised.     Thus,  a  devise  of  icild  lands 


(1)  Doe  V.  Cunclall,  9  E.  400. 

(2)  Toovey  v.  Bassett,  1 0  K.  460. 

(3)  Acklessv.  Seekright,  1  Bre.  46  ;  Outline 
V.  Gullirie,  1  CisU,  7. 

(4)  Iniiian  v  Jackson,  4  Greenl.  237.  See 
Pavne  v.  Savle,  2  Dev.  &  B.  455;  Doe  v. 
Davies,  1  Ad".  &  El.  (N.  S  .)  430  ;  Acklaud  v. 


Lutley,  9  Ad.  &  El.   879;  Doe  v.   Ewart,  1 
Ad.  &  Ell.  636. 

(5)  Gibson  v.  Montfort,  1  Yes.  485. 

(6)  Oates  V.  Cook,  3  Burr.  1684. 

(7)  Heanion  v.  Williamson,  Keen,  33  ;  Ack- 
laud V.  Princ',  2  Mann.  &  G.  937. 


(a)  Devise  to  A  and  B  and  their  heir.s  to  the  use  of  C  for  life,  after  his  death  to  the  use  of 
D  and  E  as  tenants  in  common,  with  introduciory  words  of  a  general  character.  Held,  D 
and  E  took  a  fee-simple.     Knight  v.  Selby,  3  Mann.  &  G.  92. 


634:  I'EE  SIMPLE,  ETC.,  [CHAP.  LVII. 

passes  a  fee  without  words  of  inheritance  ;  and  the  nature  of  the  prop- 
erty may  be  proved  by  extrinsic  parol  evidence.(l)(a) 

67.  An  estate  tail  may  pass  by  devise,  without  any  technical  words. (6) 

68.  Thus  a  devise  to  one  "  and  his  seed,"  or  to  a  man  and  his  wife,  "  et 
hceredide  corpore,  et  uni  hceredi  taniurii  f^  or  to  a  man  "  and  his  heirs  male," 
or  to  a  sou  "  and  his  oldest  male  heir,  forever  ;"  will  pass  an  estate  tail. 

69.  So,  a  devise  to  one  "  and  his  lawful  heirs;"  or  to  one  "and  his 
heirs  lawfully  begotten,"  although  this  expression  would  literally  ap- 
ply as  well  to  collateral  as  lineal  heirs.(2) 

70.  An  express  estate  tail  will  not  be  enlarged  into  a  fee-simple,  by 
being  charged  with  the  raising  of  money  ;  more  especially  where  it  is 
to  be  raised  from  the  annual  profit  of  the  land,  and  where  there  are  re- 
mainders over,  and   notwithstanding  the  clause  "from  and   after  the 

(1)  Sargent  «.  Towne,  10  Mass.  303;  Rus- j  i).Difreiiderffer,  2  Bland,  178;  Doet;.Bannister, 
sell  V.  Klden,  3  Shepl.  193.  I  7  Mees  &   VV.    292  ;  Douglas  v.  Congreve,  5 


(2)  Clerk  V.  Day,  Cro.  Eliz.  314;  3  Cruise, 
201;  Baker  V.  Wall,  1  Ld  Rav,  185;  Cuffee 
V.  Milk.  10  Met.  366  ;  Church  v.  Wyat,  Moore, 
637  ;  Nanfan  v.  Legh,  7  Taun.  85  ;  Winder 


Bing  N.  318;  Doe  v.  Charlton,  1  Mann.  &  G. 
429;  Simpsoa  v.  Ashvvorth,  6  Beav.  412; 
Riggs  V.  Sally,  3  Shepl.  408  ;  Lott  v.  Wyekoff, 
1  Barb.  565;  'Wiley  v.   Smith,  3   Kelly,  551. 


{a)  I  have  thus  undertaken  to  present  a  summary  statement  of  the  several  eases,  in  which 
a  devise  may  pass  an  estate  in  fee-simple  without  words  of  inheritance,  and  of  the  decisions 
in  England  and  America  upon  the  subject.  From  these  decisions  certain  general  principles 
have  been  extracted,  as  above  laid  down.  But  perhaps  there  is  no  instance  in  tlie  law, 
where  decisions  are  so  unsatisfactory  as  the  foundation  of  principles,  or  where  a  careful  in- 
quirer so  fully  realizes  the  impossibility  of  anytliing  more  than  approximation  to  settled  and 
well-defined  rules.  The  very  principle  itself  of  construing  devises  by  implication — an 
implication  founded  often  upon  clauses,  or  even  single  words  or  expressions,  wholly  dis- 
connected in  form  with  the  one  under  consideration;  or,  in  other  words,  of  construing  by 
the  intent  and  not  the  language;  involves  the  consequence,  that  each  case,  as  it  occurs, 
turns  upon  its  own  circumstances,  and  is  drawn  out  from  the  application  of  an  established 
rule  by  the  very  slightest  point  of  difference  from  previous  and  analogous  decisions.  It  is 
ver_v  observable,  also,  that  the  several  distinct  principles,  supposed  to  be  deducible  by  an  ac- 
curate analysis  from  the  decisions  on  this  subject,  do  in  fart,  when  those  decisions  are  care- 
fully examined,  run  into  each  other.  For  example,  in  Coonrod  v.  Coonrod,  (p.  630,)  al- 
though the  case  was  decided  upon  the  ground  of  a  charge  on  the  devisee,  yet  the  devise  was 
of  ''all  my  real  and  personal  estate,"  which  of  itself  has  been  held  sufficient  to  carry  the 
fee-simple.  The  same  remark  apphes  to  Goodtitle  v.  Maddern,  (p.  631.)  and  Goodright  v. 
Stocker,  (p.  632.)  So,  in  Frogmorton  v.  Holyday,  (p.  632,)  cited  to  the  point,  that  where 
there  is  a  devise  over,  in  case  the  first  devisee  dies  a  minor,  &c.,  such  devisee  will  take  a 
fee  by  implication — there  was  a  similar  introductory  clause.  Also  in  Ackless  v.  Seekright, 
(p.  633.)  So,  in  Gibson  v.  Monfort,  (p.  633,)  referred  to  as  establishing  the  principle  that  by 
a  devise  to  trustees  the  fee  will  pass,  where  the  purposes  of  tlie  trust  so  require  ;  the  devise 
is,  of  "all  my  real  and  personal  estate;"  and,  moreover,  legacies  and  annuities  are  charged 
upon  the  lands  devised.  And  in  regard  to  the  last-named  point,  it  might,  perhaps,  be  the 
most  philosophical  view  of  the  subject,  to  treat  all  charges  upon  the  laud  as  trusts,  and  thus 
reduce  two  principles  to  one.  Newland  v.  Shepard,  (p  625,)  is  cited,  as  showing  that  the 
law  peculiarly  favors  children  and  grandchildren  in  enlarging  their  estates  by  implication. 
It  is  observable,  that  in  a  large  proportion  of  the  cases  decided  upon  this  subject,  that  class 
of  persons  are  the  objects  of  the  testator's  bounty,  although  they  do  not  expressly  stand 
upon  til  is  ground. 

,  (b)  See  Weld  v.  Williams,  13  Met.  486 ;  Grout  v.  Townsend,  2  Denio,  336.  A  devise  to 
A,  and,  if  he  should  die  without  an  heir,  to  the  two  sons  of  the  testator,  was  held  under 
the  law  of  North  Carolina,  to  create  an  estate  tail  in  A,  which,  in  that  State,  amounted  to 
an  estate  in  fee-simple,  and  the  limitation  over  was  held  to  be  too  remote.  "Weatherly  v.  Arm- 
field,  8  Ired.  25. 

Devise  :  "  I  lend  to  A"'  certain  lands  "  during  his  natural  life,  and  after  his  death,  I  give 
the  above-mentioned  land  to  his  heirs,  lawfully  begotten,  to  them  and  their  heirs  forever ; 
and  in  case  he  should  die  without  lawful  issue  of  his  boiiy,  then  I  lend  the  land  to  B." 
Held,  A  took  an  estate  tail,  which,  by  the  law  of  1784,  in  North  Carolina,  became  an  estate 
in  fee,  and  therefore,  the  limitation  over  to  B  was  void,  and  he  and  his  heirs  took  nothing. 
Folk  V.  Whitley,  8  Ired.  133. 


CHAP.  LVII. 


HOW  CRKATED  BY  DEVISE. 


635 


raising  thereof  by  A  or  her  heirs,  she  and  her  heirs  shall  enjoy,  ikc, 
forever."(l) 

71.  The  same  rule  applies,(a)  where  the  devise  is  first  in  fee,  and  re- 
strieied  by  a  subsequent  elause  to  an  estate  tail. 

72.  Devise  to  A  iind  his  heirs,  on  condition  of  his  granting  an  an- 
nual rent  to  B  and  his  heirs  from  the  land  :  and  if  A  die'without  heirs  of 
his  body,  remainder  to  B  and  the  heirs  of  his  body.  Ileld,  notwithstand- 
ing the  first  express  devise  in  fee,  and  the  charge  on  the  land,  the  clause 
"it  A  die  without  heirs  of  his  body,"  restrained  the  devise  to  an  estate 
tail.(2) 

7'6.  Nor  does  it  make  any  difference,  that  the  remainder  is  limited  to 
the  right  heirs  of  the  tenant  in  tail. 

74.  A  testator  devises  distinct  parcels  of  land  to  his  several  sons,  to 
them  or  their  heirs  forever,  on  condition  that  each  pay  another  son 
£80.  Item,  if  any  of  said  children  die  without  issue,  I  give  their  es- 
tate "  unto  his  or  their  right  heirs  forever."  The  suns  take  an  estate  tail. (3) 

75.  So  where  the  devi.se  is  to  A  and  the  heirs  of  his  body,  and  their 
heirs  forever,  and  the  land  charged  with  an  annuity ;  but  if  he  die  with- 
out leaving  issue,  to  B  ;   A  takes  an  estate  tail.(4)(/>) 

76.  A  devise  to  A  and  his  heirs,  and  "  if  he  die  without  issue,"  a  re- 
mainder over  in  fee,  gives  A  an  estate  tail,  on  the  ground  that  the  in- 
tent is  paramount  in  a  will,  without  regard  to  the  relative  position  of 
the  words.(o)(c) 

77.  And  the  same  construction  is  given,  where  these  respective  dis- 
positions are  made  by  two  distinct  clauses  of  the  will. 

78.  A  testator  devises  al!  his  lands  to  his  wife  fur  life,  and  after  her 
death,  all  his  lands  in  A  to  one  son,  and  his  heirs  forever,  and  all  in  B  to 
another  and  his  heirs  forever.  Item,  I  will  that  the  survivor  of  them  shall 
be  heir  to  the  other,  if  either  of  them  die  without  issue.  Held,  the  sons 
take  an  estate  tail. (6) 

79.  Devise  to  A,  his  heirs  and  assigns  forever;  ordering,  however, 
that  A  shall  not  sell  or  dispose  of  the  land  from  his  lawful  male  issue ; 
and  if  A  should  die  without  such  issue,  the  land  to  revert  and  belong 
to  the  testator's  surviving  sons  and  their  male  issue.  A  takes  an  estate 
tail  male  general. (7) 

80.  A  testator  devises  to  the  use  of  A  his  eldest  son  and  his  heirs 
forever — and  failing  i.ssue  of  A,  to  his  son  B  and  his  heirs  ;  and  in  the 
same  way  to  C  and  his  heirs;  and  failing  his  issue  male,  to  the  use  of 
his  issue  female  and  their  heirs  forever.  The  sons  take  successively 
estates  in  tail  male ;  and  upon  the  death  of  A,  leaving  only  female 
issue,  B  takes.(8) 


(1)  Doe  V.  Fyldes,  Cowp.  833;  (Denn  v. 
Slater,  5  T.  R.  335  ;  Grout  v.  Townsend,  2 
Hill.  554.) 

(2)  Duttou  V.  Eiipram,  Cro.  Jac.  427  ; 
Heftiier  V  Knapper,  6  Watts,  18;  Moody  r. 
Walker,  3  Ark    198. 

(3)  Brlce  v.  Smith,  Willes,  1. 


(4)  Denn  v.  Shenton,  Cowp.  410. 

(5)  Browne  v.  Jerves,  Cro.  Jac.  290 ;  Eich- 
elberger  v.  Barnitz.  9  Watts,  450. 

(6)'Chadock  v  Cowley,  Cro.  Jac.  695. 

(7)  Dart  v.  Dart,  7  Conn.  250. 

(8)  Fitzgerald   v.   Leslie,  3   Bro.  Pari.   Cas. 
154  ;  (Doe  v.  Wiclielo,  8  T.  R.  211.) 


(a)  Devise  to  a  son  "  and  the  heirs  lawfully  begotten,  &c.,  and  tbeir  heirs  and  assigns." 
Held,  an  estate  tail.     Buxton  v.  Uxbrid^e,  10  Met.  87 ;  {infi-a,  sec.  75.) 

(6)  {Supra,  .sec.  71,  n.)  Devise  among  sons  equally,  tliey  paying  certain  legacies,  and  if 
any  of  them  die  without  issue,  their  share  to  be  divided  amonir  tlie  surviving  brotliers. 
Held,  an  estate  tail  in  the  sons,  with  a  vested  remainder  to  the  survivors,  and  tlie  heirs  of 
those  who  died  before  the  son,  wlio  died  without  issue.     Lapsley  v.  Lapslej',  9  Barr,  130. 

(c)  See  Dutton  v.  Engram,  Brice  v.  Smith,  supra. 


636 


FEE  SIMPLE,  ETC., 


[CHAP.  Lvn. 


81.  The  same  construction  has  been  given,  even  where  the  tenant  is 
empowered  to  dispose  of  the  land. 

82.  Devise  to  the  testator's  four  children  and  to  each  of  them  and 
their  heirs  forever,  share  and  share  alike.  And  if  they  agree  to  sell 
the  estate,  the  proceeds  to  be  equally  divided;  but  if  to  keep  it  whole 
together,  the  rents,  profits,  &c.,  to  be  equallj'  divided  between  them 
and  the  respective  heirs  of  their  bodies.  Held,  the  children  take  an.  estate 
tail.(l) 

83.  In  case  of  a  devise  to  one  and  his  heirs,  and  if  he  die  without 
heirs,  remainder  over  to  another;  if  the  latter  is  a  stranger,  the  remain- 
der is  void,  being  limited  upon  a  fee-simple. 

84.  But  if  the  second  devisee  is,  or  may  be,  a  collateral  heir  of  the 
first,  as  a  brother  or  sister,  both  devises  shall  stand,  and  the  first  devisee 
takes  an  estate  tail.  This  is  upon  the  ground,  that  a  devise  to  one  and 
his  heirs,  and  if  he  leave  no  heirs,  remainder  to  his  heirs,  would  involve 
an  evident  absurdity. (a) 

85.  One  whom  the  law  would  Jiot  suffer  to  inherit,  although  a  re- 
lation,  stands  on  the  same  footing  as  a  stranger.  As,  in  England,  a 
brother  of  the  half-b]ood.(2) 

86.  Devise  to  A,  the  testator's  son,  and  if  either  of  the  testator's 
daughters  survive  A  and  his  heirs,  they  to  have  the  land  for  life.  A 
takes  an  estate  tail,  his  sisters  being  his  collateral  heirs.(3) 

87.  So  a  devise  to  a  grandson  for  life,  and  after  his  death  to  his 
right  and  lawful  heirs  and  assigns  forever,  and  for  want  of  such  lawful 
heirs  to  another  grandson,  his  heirs,  &c. — passes  an  estate  tail  to  the 
former.  (4) 

88.  The  same  construction  is  adopted,  where  the  remainder  is 
limited  to  the  heirs  of  the  testator,  if  they  must  also  be  the  heirs  of 
the  first  devisee. 

89.  Thus  if  one  having  two  sons,  A  and  B,  devise  lands  to  B  (the 
younger)  and  his  heirs,  and  for  default  of  the  heirs  of  B,  to  his  own 
heirs ;  although  the  remainder  is  void,  because  A,  as  the  testator's 
heir  at  law,  takes  the  reversion  hy  descent;  yet,  upon  the  ground  of 
manifest  intention,  and  inasmuch  as  the  heir  of  the  testator  must  also 
be  the  heir  of  B  ;   B  takes  an  estate  tail. (5) 

90.  A  devise  to  one  and  his  issue,  or  lawful  issue,  or  children,  if  he 
have  no  children  at  the  time,  gives  him  an  estate  tail.  If  to  one  "  and 
his  male  children,"  an  estate  tail  male.  Hence,  where  these  terms  are 
used  in  connection  with  limitations  over,  a  similar  construction  is 
adopted  to  that  above  referred  to,  where  "heirs"  are  expressly 
named.(6) 

91.  Devise  to  a  son  for  life,  and  after  his  death  to  the  men  children 
of  his  body  ;  and  if  he  die  without  any  man  child,  remainder  over. 
The  son  takes  an  estate  in  tail  male.(7) 


(1)  Roe  V.    Avis,  4  T.  R.  GO 5  ;  (Doe  v.  Ri- 
vers, 7  II),  276.) 

(2)  Tilburgh  v.  Barbut,  1  Yes.  89. 

(3)  Webb  V.  Hearing,  Cro.  Jac.  415  ;  Tyte 
V.  Willis,  Forr.  1. 

(4)  Morgan  v.  Griffiths,  Cowp.  234. 


(5)  Nottingham  v.  Jennings,  1  P.  W.  23. 

(6)  Wild's  case,  6  Rep.  16;  Frank  v. 
Stovin,  3  E.  548 ;  Kingsland  v.  Rapelye, 
3  Kdw.  1  ;  Peppercorn  v.  Peacock,  3  Mann. 
&  G.  356  ;   Wheatland  v.  Dodge,  10  Met.  502. 

(7)  And.  43. 


(a)  See  Perry  v.  Briggs,  12  Met.  17;  Deboe  v.  Lowen,  8  B.  Mon.  16. 


CHAP.  LVIL]  now  CREATED  BY  DEVISE.  G37 

92.  Devise  of  all  the  residue  of  real  and  personal  estate  to  A  and 
his  Sons  in  tail  male,  and  for  want  thereof  to  B  and  his  sons  in  tail 
male,  and  on  failure  of  sueh  issue,  to  the  testator's  own  right  heirs. 
Neither  A  nor  B  had  issue  at  the  making  of  the  will  or  the  testator's 
death.     A  died  without  issue.     B  takes  an  estate  tail  male.(l) 

98.  Devise:  "  I  give  to  my  daughter  M  and  her  children,  one-half 
of  my  house  and  land,  &;c.  Item,  I  give  to  my  daughter  J  and  her 
children  the  other  half.  But  if  either  of  my  aforesaid  daughters 
should  die  and  leave  no  children,  my  will  is,  that  my  surviving 
daughters  and  their  children  should  enjoy  their  deceased  sister's  part." 
M  was  unmarried  at  the  making  of  the  will,  but  it  did  not  a|)pcar 
whether  she  ever  had  any  child,     lleld,  J  took  an  estate  tail. (2) 

94.  Devise:  to  my  son  A,  when  he  shall  be  21,  the  tee-simple 
and  inheritance  of  S,  to  him  and  his  child  or  children  forever ;  but 
if  he  die  under  21,  to  my  wife  forever.  A  had  no  children  at  the 
testator's  death  or  the  making  of  the  will.  Held,  A  took  an  estate 
tail.(8)(a) 

95.  A  testator  devises  to  his  daughter  all  his  effects  and  estate,  real 
and  personal,  "as  a  place  of  inheritance  to  her  and  her  chihlren  or  her 
issue  forever."  And  if  sh  j  die  leaving  no  child,  or  if  her  children  die 
without  issue,  the  estate  to  be  suld.  The  daughter  takes  an  estate 
tail.(4)(6) 

96.  A  devise  without  words  of  limitation  may  be  eidarged  by  sub- 
sequent words  or  by  implication,  so  as  to  create  an  estate  tail  instead 
of  an  estate  for  life.  Thus  a  house  was  devised  to  three  brothers 
among  them  ;  provided  always  that  the  house  were  not  S(>ld,  but 
should  go  to  the  next  males  of  the  name  and  blood,  lleld,  the 
devisees  took  an  estate  tail.(5) 

97.  A  testator  devises  a  house  to  his  wife  for  life,  and  after  her 
death  his  son  A  to  have  it ;  and  if  A  married  and  had  by  his  wife 
any  male  issue,  his  son  to  have  it ;  and  if  he  had  no  male  issue,  his 
son  B  to  have  the  house;  and  if  anv  of  his  sons  or  their  heirs  male, 
issue  of  tlieir  bodies,  went  about  to  aliene  or  mortgage  the  house, 
the  next  heir  to  enter.  Held,  B  took  an  estate  tail  ;  that  the  words, 
"  have  no  male  issue,"  were  equivalent  to  "  die  without  male  issue ;" 
and  that  the  clause,  "  his  sons  or  their  heirs  male,"  and  that  pro- 
hibiting alienation,  showed  an  intent  to  give  an  estate  tail. (6) 

98.  Devise  to  the  testator's  three  daughters  to  be  equall}''  divided  ; 


(1)  Wliarton  v  Grcsbam,  2  Black.  R.  1083. 

(2)  Niirlilincrale  V.  Burrell,  15  Pick.  104. 

(3)  Davie  v.  Sieveiis,  Doiijr.  321. 

(4)  Wood  V.  Baroii,  1  E.  259. 

(5)  Blaxton  v.  Stone,  3  Mod.  123;  Hope 


V.  Taylor,  1   Burr.  268 ;  Evans  v.  Astley,  3 
Burr.   1570;  Ilcfl'iier  v.  Kiiepper,   6  Walts, 
IS;   Chapman's  case,  Dyer,  333. 
(6)  Monday's  case,  9  liep.  127. 


(a)  Devise  to  a  sister  Tor  life,  remainder  to  lier  son  A,  "and  his  lieir  male,  livinjr  to  nttaia 
the  ay:o  of  tweiity-one;"  if  no  heir  male,  then  to  such  issu'^  female,  £200,  to  l)e  equally 
divided  ;  it"  no  sm-h  male  or  female  livinjr,  Siiid  £200  to  the  sist<;r"s  cliildren  ;  "and  the  in- 
heritance of  said  estate,  for  want  of  such  ra  ile  issue,  to  redound  to  my  hi-ir  male,"  Ac.  Held, 
A  took  an  otate  tail,  the  words  "  livinjr  to  atiain  "  not  bein;/  dvscriptii)  persona,  or  a  condi- 
tion prei-fdent,  hut  a  suhsequent  condition,  deleatins:  the  esiate  tad,  if  no  such  heir  male 
shoull  livi:>  to  h«  twenty-one.     Doe  v.  Permomen.  11  .\.d.  k  El,  431. 

(6)  By  Stai.nie  1  Vict.  ch.  26,  the  wonis  '"die  witliout  issue,"  "die  without  leaving 
issue,"  or  other  words  importinjr  either  want  or  failure  of  i.ssue,  are  construed  to  mean  death 
with<iut  issue  then  livinsr,  not  an  indefinite  fiilure  of  issue,  uidess  a  contrary  inioniiou  ap- 
pear Irom  other  words  of  the  will.     Ace.  George  v.  Morgan,  16  Penn.  95. 


638 


PEE  SIMPLE,  ETC., 


[CHAP.  LVII 


and  if  any  of  them  died  before  the  other,  then  the  one  to  be  the 
other's  heir,  equally  to  be  divided  ;  and  if  they  died  without  issue, 
devise  over  to  strangers.     The  daughters  take  estates  tai].(l) 

99.  A  testator  devises  to  his  wife  for  life,  th(  n  to  his  son,  and  if  he 
die  without  issue,  having  no  son,  to  a  stranger.  The  son  takes  an 
estate  tail. (2) 

100.  An  express  estate  for  life  without  waste  may  be  enlarged  by 
subsequent  words  or  necessary  implication  into  an  estate  tail.  This 
takes  place,  where  a  remainder  over  is  limited,  which  is  not  to  take 
effect  until  failure  of  the  issue  of  tenant  for  life,  and,  at  the  same  time, 
there  are  no  words  by  which  such  issue  or  the  whole  of  them  take  as 
purchasers. 

101.  Devise  to  A  for  life,  without  waste,  remainder  to  his  several 
sons  as  far  as  the  sixth  ;  and,  if  A  die  without  issue  male,  to  B  in  fee. 
To  etfectuate  the  evident  intent  of  admitting  any  sons  beyond  the 
sixth,  held  A  took  an  estate  tail. (3) 

102.  Devise  to  A  for  life,  then  to  the  first  son  or  issue  male  of  his 
body,  and  the  heirs  male  of  the  body  of  such  son ;  then  to  the  second  son 
or  issue  male  of  A  forever.  And  after  A's  death  without  issue  male  of 
his  body,  or  ajter  the  death  of  such  issue  male,  to  charitable  uses.  Held, 
notwithstanding  the  express  limitation  for  life,  and  the  charitable  de- 
vise, inasmuch  as  no  son  of  A  beyond  the  second  could  ever  claim  as 
purchaser,  the  words  "  such  issue  male  "  must  be  construed  to  mean 
"issue  male"  generally,  and  A  took  an  estate  in  tail  male.(4) 

103.  Devise  to  trustees  for  the  sisters  of  the  testator,  A  and  B,  equally 
between  them  during  their  natural  lives,  without  waste;  and  if  either 
of  them  die  leaving  issue  or  issues  of  her  or  thfir  bodies,  then  in  trust 
for  such  issue  or  issues  of  the  mother's  share,  or  else  the  survivor  or 
survivors  of  them  and  their  respective  issue  or  issues;  and  if  both  A 
and  B  die  without  issue  as  aforesaid,  and  their  issue  or  issues  to  die 
without  issue  or  issues,  devise  over.  The  question  was,  whether  A 
and  B  took  estates  for  life  or  in  tail.  The  Court  of  Great  Sessions  de- 
termined that  they  took  the  latter.  This  decision  was  reversed  by  the 
Court  of  K.  B.,  but  affirmed  by  the  House  of  Lords.  It  was  contended, 
that  the  issue  of  A  and  B  were  designed  to  take  as  purchasers ;  and 
that  this  intent  appeared  from  the  limitation  "to  the  survivor  or  survi- 
vors of  them,  and  their  respective  issue  or  issues  ;"  the  word  survivors 
not  being  applicable  to  the  sisters,  of  whom  there  were  but  two,  but 
only  to  their  issue.(5) 

104.  A  testator  devises  to  W  all  his  freehold  estate  at  A  for  life ; 
and  after  his  decease  to  and  among  his  issue;  and  in  default  of  issue, 
devise  over  in  fee.  Held,  to  effectuate  the  general  intent,  although  the 
particular  intent  might  be  otherwise,  W  took  an  estate  tail. (6) 

105.  Devise  to  A,  a  daughter  of  the  testator,  and  her  children,  of 
one-half  of  the  estate,  and  to  B,  another  daughter,  and  her  children,  ' 
of  the  other.     If  either  of  them  die  and  leave  no  children,  my  survi- 
ving daughters  and   their  children   shall  enjoy  their  deceased  sister's 
part.     A  was  unmarried  at  the  making  of  the  will.     B  was  married. 


(1)  King  V.  Rumball,  Cro.  Jac.  448. 

(2)  Kobinson  v.  Miller,  1  Rolle  Abr.  837. 

(3)  Langley  v.  Baldwin,  1  P.  Wms.  759. 

(4)  Alt.   Gen.  v.  Sutton,  1  P.  Wms.  753  ; 


Robinson  v.  Hicks,  3  Bro.  Pari.  Ca.  75. 

(5)  Sparrow   v.    Shaw,  3  Bro.  Pari.  120; 
Shaw  V.  Weigh,  Fitzg.  7. 

(6)  Doe  V.  Applin,  4  T.  R.  82. 


CHAP.  LYII]  now  CRKATKD  BY  DKTISK.  f;39 

but  it  Jill  not  nppcar  wlietlicr  she  ever  liud  ti  child.     Held,  B  took  an 
estate  tail. 

lOG.  Devise  to  A  for  life;  if  he  die  without  issue,  leaving  no  chil- 
dren, the  lands  to  be  sold,  and  the  proceeds  divided  among  three  otht.-r 
sons;  if  any  die  before  A,  their  shares  to  be  divided  aniyng' tlieir  chil- 
dren.    A  takes  an  estate  tail.(l) 

107.  Tlie  same  construction  has  been  adopted,  even  where  the  word 
"only,"  or  the  words  "and  no  longer,"  are  added  to  an  express  limita- 
tion lor  life.(2)  So,  in  case  of  a  devise  to  A,  who  was  then  unmarried, 
"for  aiul  during  the  term  of  his  natural  life,  and  no  longer,"  provided, 
&c. ;  and,  after  his  decease,  to  such  son  as  he  shall  have,  lawfudy  to  be 
begotten,  taking  the  name  of  R,  and  for  defoult  of  such  issue  devise 
over  in  fee;  the  question  arose,  whether  A,  having  fulfilled  the  condi- 
tion prescribed,  took  an  estate  tail,  or  only  a  life  estate,  with  remainder 
to  his  first  son  onl3\  After  two  decisions  in  Chancery  in  favor  of  the 
latter  construction,  and  judgments  of  the  King's  Bench  and  the  Lords 
Commissioners  in  favor  of  the  former,  the  case  was  carried  to  the  Uouse 
of  Lords,  On  the  one  side,  it  was  contended,  that  besides  the  positive 
words  "  and  no  longer,"  the  words  "  for  default  of  such  issue,"  must 
mean  for  default  of  a  son  as  above  described,  and  not  of  issue  generally. 
Therefore,  that  A  took  only  a  life  estate  ;  and,  if  so,  the  son  must  claim 
as  purchaser,  and,  for  want  of  any  words  of  inheritance,  could  have 
only  a  life  estate.  On  the  other  side  it  was  argued  "  inter  aZi'a,"  that  as 
A  w:is  unmarried  at  the  time  of  making  the  devise,  there  was  no  pro- 
babilit}-  of  an  intent  to  designate  any  particular  son  ;  and  that  the  word 
"  son  "  was  iiomen  colkdiviim,  and  the  phrase  "for  want  of  such  issue," 
referred  to  it  in  that  sense.     Held,  A  took  an  estate  tail. (3) 

108.  The  same  construction  is  adopted,  wher6  the  direct  limitation  is 
to  the  heirs  of  the  body,  but  in  a  mode  different  from  that  in  which  the 
law  passes  an  estate  by  descent;  so  that  the  children  must  take  as  pur- 
chasers, unless  an  estate  tail  is  created, 

109.  Devise  to  the  testator's  daughter  A,  and  the  heirs  of  her  body 
forever,  as  tenants  in  common^  and  not  as  joint  tenants ;  and  if  A  die 
before  21,  or  without  liaving  issue,  devise  over.  Held,  although 
the  testator  intended  that  A  should  take  only  for  life,  and  her  children 
as  purchasers,  he  also  intended  that  the  issue  of  these  children  should 
take,  before  the  remainder  ever  took  effect.  Therefore  A  became  tenant 
in  tail.(-l) 

110.  It  was  stated  in  the  last  chapter,  (s,  31,)  that  the  common  law 
rule,  which  requires  the  word  heirs,  to  pass  a  lee-simple  by  deod,  has 
been  altered  by  statute  in  several  of  the  States.  In  these  States,  the 
same  statutory  provisions  apply  alike  to  deeds  and  to  devises;  and,  in 
some  other  States,  a  similar  change  has  been  made  in  regard  to  devi- 
ses alone.     In  Massachusetts, (a)  New  Hampshire,  Vermont  and  Ohio, 


(1)  Xiglitingale  v.  Burrell,  15  Pick.  10-1; 
iIaclu-11  V.  Weeding,  8  Sim.  4. 

(2)  Doe  V.  Cooper,  1  E.  229. 

(3)  Robinson  v.  Hicks,  1  Burr.  38 ;  Robin- 


son v.  Robinson,   2  Ves.  225;    3  Bro.  Pari. 
Ca.  180. 

(4)  Doo   V.    Smitb,    7    T.    R.    531  ;   Poo  v. 
Cooper,  IE.  229. 


(o)  Tbe  intention  need  not  be  declared  in  express  terms;  if  it  can  be  clcariv  iiim  .s:iiis- 
factorily  inferred,  (on  a  comparison  of  tlie  different  parts  of  the  will,)  eillicr  from  particular 
provisions,  wliicii  are  inconsistent  with  an  intent  to  give  a  fee,  or  from  the  general  import, 
schemo  aud  object  of  the  will.     Fay  v.  Fay,  1  Cush.  93. 


640 


THE  RULE  IX  SHELLEY'S  CASE. 


[CHAP.  LYIIL 


a  fee-simple  passes  by  devise,  unless  a  contrary  intent  clearly  appear.(l) 
In  New  Jersey,  if  there  are  no  words  importing  a  life  estate,  and  note- 
maiiider  is  limited(2).  In  Marjdand  (in  case  of  wills  made  after  April 
1,  182i))  and  in  Pennsylvania,  unless  the  contrary  appears,  b}'  a  devise 
over,  words  of  limitation,  or  otherwise.(3)  The  same  rule  is  adopted 
in  North  Carolina  and-Tennessee.(4)(a) 


CHAPTER  LVIII. 


THE    RULE    IN   SHELLEY'S    CASE. 


(1)  History  of  the  rule, — SheUei/s  case. 
3-5.  Effect  of  intervening  estates  between 

the  ancestor  and  lieirs. 
4.  Life  estate  by  implication. 
6.  Joint  or  several  life  estate  and  inherit- 
ance— husband  and  wife,  &c. 
8.  Two  estates  created  by  distinct  instru- 
ments. 
13.  Union  of  legal  and  equitable  estates. 
15.  Use  of  the  words  issue,  childi-en,  &c. 
18.  Marriage  articles. 

31.  Rule  applies  to  devises,  notwithstanding 
other  provisions  implying  a  contrary 
intent. 


37.  Eeir,  next  heir  male,  words  of  subse- 
quent limitation  added  to  the  word 
heir,  &c. 

48.  Trusts,  executed  and  executory — dis- 
tinction. 

56.  Terms  for  years. 

62.  Distinction  as  to  subsequent  words  of 
limilarioti. 

68.  Rule,  where  the  heirs  are  to  have  only 
a  life  estate. 

70.  Issue,  etlect  of  the  word. 

81.  Union  of  trust  and  legal  estate. 

90.  Case  of  Ferrin  v.  Blake. 

95.  American  doctrine. 


1.  It  was  early  settled,  that  where  a  conveyance  is  made  to  a  person 
for  life,  remainder  to  his  heirs  or  the  heirs  of  his  body  ;  instead  of 
giving  him  a  life  estate  and  a  contingent  remainder  to  the  heirs,  it  vests 
a  fee-simple  or  an  estate  tail  in  the  first  grantee.  This  construction 
was  adopted,  for  the  purpose  of  saving  to  the  lord,  the  profits  or  per- 
quisites incident  to  inheritances :  and  also  upon  the  general  ground  of 
preventing  an  abeyance  of  the  fee,  which  would  rend'^r  it  inalienable 
during  the  life  of  the  first  taker.(6)  The  principle  was  finally  estab- 
lished in  a  case  called  *SVifZfe?/'s  ca.se,(6)  which,  from  the  importance  of 
the  rule  and  iU  frequent  application  in  practice,  has  become  more 
notorious  and  2^''overbial,  perhaps,  than  any  other  case  in  the  English 


(1)  Ohio  L.  vol.  30,  1831-3,  p.  41;  Mass. 
Rev.  St.  417;  N.  IL  Rev.  St.  311;  Swan, 
999;  Verm.  Rev.  St.  254. 

(2)  N.  J.  L  60. 

(8)  Md.  L.  1825,  93;   Park  &  John.  467. 


(4)  4  Kent,  8. 

(5)  Co.  Lit.  22  b,  319  b;  2  Rolle's  Abr. 
414.  See  Selioonmaker  v.  Sheely,  3  Denio, 
485. 

(G)  1  Rep.  93. 


A  testator,  in  lieu  and  bar  of  dower,  devised  the  "use  and  improvfment"  of  one-third  of 
his  real  estate  to  his  wife,  bequeatlied  her  certain  personal  estate  during  her  life,  and  the  in- 
come of  certain  other  personal  estate  during  her  widowhood;  and  also  made  devi.ses  in  fee 
of  certain  real  estate,  by  the  use  of  the  proper  teclmical  terms.  Held,  by  the  word.s  "use 
and  improvement,"  tlie  wife  took  an  estate  lor  lifa  in  the  real  estHte,  and  (admitting  the  de- 
vise to  her  to  be  williin  the  Rev.  Sts.,  c.  62,  sec.  4,  which  the  court  aid  not  decide)  that  the 
statute  did  not  enlarge  her  estate  to  a  fee,  as  it  clearly  appeared,  by  xhe  will,  that  the  devi- 
sor intended  to  convey  a  less  estate.     Fay  v.  Fay,  1  Cush.  93. 

(rt)  By  St.  7  Wm.  IV,  and  1  Vict.  ch.  26,  a  general  devise,  without  words  of  limitation, 
passes  the  testator's  whole  interest  in  the  property  devised.     1  Steph.  Comm.  224. 


CHAP.  L7III.]  THE  RULE  IX  SHELLEY'S  CASE.  641 

E(?ports.  The  facts  of  this  case  were  as  follows  :  E.  Slicllcj',  tenant  in 
tail,  suffered  a  recovery,  and  declared  the  uses  of  it  to  himself  for  life, 
without  impeachment  of  waste,  remainder  to  a  trustee  for  twenty-four 
years,  remainder  to  the  heirs  male  of  ihe  body  of  E.  Shelley,  and  the 
heirs  male  of  the  body  of  such  heirs  male,  remainder  over.'  LIrld,  by 
the  Chancellor,  and  all  the  judges  except  one,  that  E. 'STjclley  took  an 
estate  tail.  The  decision  rested  upon  the  ground,  that  if  li,  Shelley, 
the  first  son  of  E.  Shelley,  took  by  purchase  and  not  by  inheritance, 
then  no  other  son  of  E.  Shelley  could  ever  take  the  estate,  which  would 
disappoint  the  word  heirs  (of  E.  Shelley,)  in  the  deed  ;  and  that  the 
limitation  to  the  heirs  male  of  the  heirs  male  of  E.  Shelley  did  not  con- 
trol the  prior  limitation,  but  was  merely  declaratory,  because  every 
heir  male  of  the  heir  male  of  E.  Shelley  was  an  lieir  male  of  E.  Shelley 
himself 

2.  It  is  said,  that  the  rule  in  Slielley's  case  was  adopted  to  carry  into 
effect  the  general  inknt^  by  annexing  particular  ideas  of  property  to 
particular  modes  of  expression ;  not  as  an  essential,  permanent  and 
substantial  rule,  which  the  intent  cannot  control.(l)  On  the  other 
hand,  it  is  said  to  be,  not  a  rule  of  construction  for  ascertaining  the 
intention  of  the  party,  but  a  rigid  rule,  the  chief  operation  of  which 
is  to  defeat  the  intention  of  the  grantor.(2) 

3.  It  was  formerly  held,  that  if  intervening  estates  are  limited  be- 
tween the  grantee  and  his  heirs,  all  of  which,  as  well  as  the  grantee's 
own  estate,  may  terminate  in  his  life  ;  the  inheritance  does  not  vest  in 
the  grantee,  because  lie  may  have  no  heir  to  take  the  remainder.  But 
Mr.  Eearne  has  denied  this  exception  to  the  rule.(3)(«) 

4.  The  rule  is  applicable  though  the  first  grantee  take  an  estate  for 
life  by  implication  and  not  by  express  words.(6)  But  if  he  take  only 
an  estate  for  years,  his  heirs  take  as  purchasers,  and  not  b}'  inherit- 
ance.(4) 

6.  Where  a  limitation  to  heirs  is  immediate,  the  tenant  for  life  or 
ancestor  takes  one  entire  estate  of  inheritance.  Where  it  is  mediate, 
that  is,  where  some  other  estate  interposes  between  the  estate  for  life 
and  the  remainder,  the  tenant  takes  the  inheritance,  not  to  be  executed 
in  possession  till  the  mesne  estates  terminate  ;  unless  the  mesne  estates 
are  less  than  freehold,  when  the  subsequent  limitation  vests  imine- 
diately.  If  the  mesne  remainders  are  contingent,  the  life-estate  does 
not  merge  in  the  remainder  to  the  heirs ;  but  the  two  interests  unite 
sub  modo^  so  as  to  open  and  let  in  the  mesne  estate  when  the  contin- 
gency happens.(5) 

6.  Where  the  prior  estate  is  limited  to  several  persons  jointly,  and 
the  remainder  to  their  heirs,  it  seems  they  take  a  joint  inheritance. 


(1)  Harg.  Tracts,  493;  4  Cruise,  256.   See 
Kingi;.  Beck,  15  Ohio,  550. 

(2)  Berry  v.  Williainsoii,  1 1  B  Mori.  245. 

(3)  2   Rolle's  Abr.  418;  Fearue,  33;  Cur- 
tis V.  Price,  12  Ves.  89. 


(4)  4  Cruise,  266  ;  Tipping's  case,  1  P. 
Wms.  359. 

(5)  Fearne,  37-8,  42 ;  Colsou  v.  Colson,  2 
Atk.  247;  Hodgson  v.  Ambrose,  Doug.  337; 
Hayes  V.  Foorde,  2  Bl.  R.  698. 


(a)  Devise  to  A  for  liTe,  then  to  B  for  life,  then  to  the  heirs  of  the  body  of  A  in  tail.  A 
takes  an  estate  tail.  Dougla.i  v.  Congreve,  4  Bing.  N.  1.  Devise  to  A  for  life,  remuiuder  to 
his  oldest  son  ;  for  want  of  such  issue,  to  his  daughter  or  daughters,  siiare  and  .share  alike, 
forever ;  if  A  has  no  is.sue,  to  him,  liis  heirs  and  assigns  forever.  A  takes  an  estate  in  tail 
general.     Doe  v.  Charlton,  1  Scott  N.  290. 

(ft)  But  see  14  Pick.  25. 

.  Vol.  I.  41 


g42  THE  RULE  IN  SHELLEY'S  CASE.  [CHAP.  LVIIL 

The  rule  applies  to  husband  and  wife.  But  if  the  limitation  of  the  life- 
estate  is  successive^  as  to  the  husband  for  life,  remainder  to  the  wife  for 
life,  remainder  to  the  heirs  of  their  bodies;  it  seems  they  take  a  joint 
remainder  in  tail,(l)(a) 

7.  A  limitation  to  A,  remainder  to  the  heirs  of  A  and  B,  creates  a 
contingent  remainder,  not  a  vested  inheritance.  So,  also,  a  limitation 
to  the  wife  for  life,  remainder  to  the  heirs  of  the  body  of  husband  and 
wife-  because,  if  the  wife  should  die  first,  as  the  husband  could  have 
no  heir  during  his  life,  the  limitation  to  the  heirs  would  be  defeated. 
And  in  such  case,  neither  husband  nor  wife  takes  an  estate  tail ;  the 
former  having  no  prior  limitation  to  him,  and  the  latter,  because,  though 
taking  the  life  estate,  the  heirs  are  not  applied  to  her  body.  If  the 
limitation  is  to  the  husband  for  life,  remainder  to  the  wife  for  life, 
remainder  to  the  heirs  of  her  body  by  him  begotten,  she  takes  an 
estate-tail.(2) 

8.  The  rule  in  Slielleijs  case  is  inapplicable,  where  the  prior  estate 
and  the  remainder  are  created  by  distinct  conveyances,  or  by  a  deed 
and  subsequent  will.  Thus,  if  an  estate  for  life  is  conveyed  to  A,  re- 
mainder to  the  heirs  of  B,  and  B  afterwards  purchases  A's  interest; 
the  inheritance  does  not  thereby  vest  in  B.(3) 

9.  Conveyance  by  A,  on  the  marriage  of  B  his  son,  to  the  use  of  B 
for  life,  remainder  to  his  wife  for  life,  remainder  to  their  first  and  other 
sons  in  tail.  A  afterwards  devised  to  the  issue  male  of  B  by  any  other 
wife,  in  tail  male,  and  on  failure  of  such  issue  male  ot  B.  to  his  grand- 
children by  his  daughter  C  in  fee.  Held,  the  devise  to  B's  male  issue 
by  any  other  wife  could  not  be  tacked  to  his  life  estate.(4) 

10.  A  conveys  to  B  for  life,  and  afterwards  devises  the  reversion  to 
the  heirs  male  of  the  body  of  B.  Held,  the  U\o  interests  could  not 
unite. (5) 

11.  It  is  said,  that  where  the  second  limitation  is  made  by  virtue  of 
a  power  created  by  the  first,  the  rule  in  Shelley^s  case  applies,  because 
one  taking  an  estate  in  this  way  holds  in  construction  of  law  by  virtue 
of  the  original  instrument  which  created  the  power. 

12.  Conveyance  to  A  for  life,  remainder  to  the  use  of  B,  his  wife,  for 
life  &c.,  remainder  to  their  sons  severally  in  tail,  remainder  to  the  use 
of  their  daughters  successively  in  tail,  remaindtT  to  the  use  of  B  and 
the  heirs  of  her  body  ;  and  in  default  of  such  issue,  to  the  use  of  such 
person  as  B  should  appoint.  B  subsequently  made  an  appointment  to 
the  use  of  the  heirs  of  A,  Held,  if  the  last  limitation  had  been  of  a 
legal  estate,  it  would  have  given  A  the  fee ;  but  that  it  did  not  create 
a  legal,  but  only  an  equitable  interest.(6) 

18.  The  last  case  leads  naturally  to  the  remark,  that  the  rule  in 

(1)  Fearne,  40;  Stevens  v.  Brittredge,  T. 
Ray.  36. 

(2)  F.'arne,  44  ;   Gosajre  v.  Taylor,  2  T.  R. 
435;   Alpass  v.  Watkiii-S,  8  T.  K.  516. 

(3)  Cranmer's  case,  2  Leon.  5,  7. 


(4)  Moore  v.  Parker,  1  Ld.  Ray  27. 

(5)  Doe  V.  Foniiereau,  Doug.  487. 

(6)  Venablesv.  Morris,   7    T.  R.    342;   lb. 
438. 


(ai  Conveyance  (before  the  Rev.  St  cb.  59,  sec.  9.  took  eflfeet)  to  A.  to  the  use  of  a  hus- 
band and  wile  for  their  hves  and  the  life  of  the  survivor,  tlien  to  the  use  of  B  f()r  lile,  then 
to  tlie  u.se  ot  the  heirs  of  the  wife  forever.  Held,  the  wife  took  a  fee,  in  case  of  surviving 
the  iiusband  and  B.  Buliard  v.  Gofife,  20  Pick.  252.  Devi.-<e  to  A.  for  the  life  of  herself 
and  her  husband  B;  afier  tlieir  dealiis,  to  the  lawful  issue  of  her  body.  Held,  A  took  an 
estate  tail.     Griffitli  v.  Evan,  5  Beav.  241.     See  Hiuman  v.  Bouslaugh,  1  Harr.  344. 


CHAP.   LVIII.] 


THE  RULK  IN  SHKLLKY'S  CASE. 


643 


Shelleifs  case  docs  not  rii)|'ly,  unless  the  two  estates  are  of  the  same 
nature,  either  legal  or  equitable.  Thus,  if  the  limitation  for  life  is  a 
legal  interest,  and  that  to  the  heirs  a  trust,  or  the  converse;  in  either 
case  the  two  estates  cannot  become  united  into  one.(l) 

14.  Cotivevanee  by  A  to  B,  C  and  D,  selectmen  of  the  town  of  II, 
to  them  and  their  successors  in  office  for  the  time  beirrg;  for  tlie  use  of 
E,  and  after  his  death,  if  any  of  the  premises  should  remain,  to  K's 
heirs  forever;  to  hold  for  the  u.se  aforesaid  at  the  discretion  of  the 
grantees.  Held,  B,  0  and  D  took  a  legal  estate  in  trust  for  E  and  his 
heirs,  and  as  the  ti'ust  was  in  fee,  the  estate  of  the  trustees  was  also 
in  fee.(2)(a) 

15.  Tiie  rule  in  question  does  not  apply,  where  the  words  lawful  mne, 
issue,  sons  or  children,  are  used  instead  of  heirs;  becau-^e  it  is  founded 
upon  the  maxim  ^^nemo  est  lucres  viventis,^^  and  the  policy  of  prevent- 
ing an  abeyance  of  the  fee,  which  reasons  do  not  exist  in  the  case 
supposed.(8)(6) 


(1)  Saj  V.  Jones,  3  Bro.  Pari.  113;  4 
Cruise,  260-1:  Payne  v.  Sale,  2  Dev.  &  B. 
455;  Settle  ».  Settle,  10  Humph.  474. 

(2)  Newhall  v.  Wheeler,   7  Mass.  189. 

(3)  4  Cruise,  261.     See  EUet  v.  Paxson,  2 


Watts  &  S.  418  ;  Turner  u.  Patterson,  5  Dana, 
295  ;  Cursiiain  v.  Nevvland,  4  Mees.  &  W. 
101;  Curslmin  v.  Nevvland,  2  Beav.  145; 
Minnig  v.  Batdorff,  5  Barr,  503;  Ward  v. 
Jones,  5  Ired.  Equ.  400. 


(a)  In  White  v.  Woodbcny,  (9  Pick.  138-9,)  it  is  said,  that  in  the  case  of  Newhall  v. 
Wheeler,  tlie  operation  of  the  stauue  (chanifin^  tlie  rule  in  Shelley's  case)  does  not  seem  to 
have  heeii  considered  by  the  court.  The  distinction  is  also  taken  between  the  two  cases, 
that  in  tlie  prior  one  the  land  was  devised  (conveyed)  to  the  use  of  one  for  life,  and  after 
his  death,  it  any  of  the  premises  should  remain,  to  his  heirs  forever;  while  in  tlie  latter,  the 
devise  to  the  tru-stee  was  in  strict  trust,  the  income  to  be  paid  to  another  for  his  litis,  and 
then  the  estate  to  descend  to  liis  heirs,  so  that  the  latter  took  nothing-  but  a  right  to  the 
income  and  profits.  The  case  of  White  v.  Woodherrj',  vras  as  follows: — Devise  to  A,  his 
executors  ami  administrators,  upon  trust  to  pay  the  income  to  13  for  his  life,  and  after  his 
decea.se,  the  same  to  descend  to  his  legal  heirs,  &c.  Held,  the  words  the  same  applied  to 
the  estate  itself,  not  to  the  trust,  and  that  A  took  a  trust  estate  during  B's  life,  with  a  re- 
mainder to  those  who  should  be  his  heirs  at  his  decease;  that  this  would  be  the  construc- 
tion^, independently  of  any  statute  atl'ecting  the  rule  in  Shelley's  case;  but  that  the  Statute 
of  1791,  cli.  Gl,  sec.  3,  which  changes  this  r\ile,  applied  to  equitable  as  well  as  legal 
estates. 

Where  an  estate  was  intended  to  be  given  to  one,  witli  contingent  remainders  to  his 
issue,  and  was  conveyed  directly  to  trustees,  in  trust  for  the  party  who  was  to  have  the  life 
estate,  iluring  his  life,  and  also  to  preserve  the  contingent  remainders,  and  upon  that  estate 
to  limit  the  future  remainders:  the  person  first  beneficially  entitled  takes  an  equitaiile  estate 
for  his  life,  and  those  in  remainder  take  by  purchase,  and  not  by  descent.  Vanderheyden  v. 
Crandall,  2  Denio,  9. 

(//)  Devise  to  A,  and  to  his  male  children  an<i  their  heirs,  to  be  equally  divided  amongst 
tbein  and  their  heirs  forever  At  the  making  of  the  will,  A  had  no  children.  Held,  he 
took  a  life  estate,  with  a  contingent  remainder  in  fee  to  his  children.  Sisson  v.  Seahury,  1 
Sumn.  235.  But  where  a  devise  was  made  to  the  testator's  son  during  Ids  lite,  alter  his 
decease  to  his  heirs  and  Iheir  heirs  and  assigns  Ibrever;  held,  the  words  were  words  of 
limitation,  and  gave  the  son  a  fee-simple.  Schoontnaker  v.  Sheeley,  3  Hdl,  liJ5.  Deed  to 
a  daughter  and  her  husl)and,  of  a  certain  doiver  in  lands,  lor  the  benefit  of  her  aiwl  his  chil- 
dren, to  her  and  her  children  forever.  Held,  she  took  a  life  estate,  with  a  remainder  to  her 
children,  including  those  sul)sequently  fiorn.  Webl)  v.  Holmes,  3  B.  Monr.  406.  De\  ise  to 
A  for  his  natural  lite,  after  his  death  to  all  and  every  issue  ot  his  body,  share  and  share 
alike,  as  tenants  in  common,  and  the  heirs  of  such  issue.  Held,  A  took  only  a  life  estate. 
Greenwood  v.  Hothvvell,  5  Mann   &,  G.  G28. 

A  devise  was  nnide  to  A  "during  her  natural  life,  and  at  her  death  to  lier  children  and 
their  iieir.x,  in  lee  simple,  to  be  for  her  and  her  family's  use  during  her  nainral  lite,  and  lier 
children  and  their  heirs  to  enjoy  it  at  her  death."  Held,  that  tlio  husband  of  A  took  no 
interest  l>y  the  devise.     Heck  v.  Clippenger,  5  Barr,  385. 

A  testator,  in  the  year  1812,  devised  his  real  estate  to  his  illegitimate  son,  J  B,  for  life, 
"and  from  and  after  the  decease  of  the  said  J  B,  for  and  to  the  first  and  every  other  son  of 


644  THE  RULE  IX  SHELLEY'S  CASE.  [CHAP.  LTHI. 

16.  The  rule  is  inapplicable,  where  the  word  heir  is  used,  and  other 
words  of  limitation  are  added  to  it. 

17.  Limitation  to  A  for  life,  remainder  to  his  wife  B  for  life,  remain- 
der to  the  heir  male  of  her  body  bj  him  begotten,  and  to  the  heirs  or 
executors  of  such  heir  male.  Held,  this  created  a  contingent  remainder 
in  fee  to  him  who  should  be  the  heir  male  of  B  at  her  death. (1) 

18.  The  rule  in  Shelleijs  case  is  inapplicable  to  marriage  articles; 
which  are  regarded  as  made  for  the  benefit  of  children,  who  take  as 
purcha.sers  for  a  consideration  ;  and  are  in  their  nature  executory^  and 
therefore  to  be  construed  liberally,  by  the  intention.  They  are  even 
more  liberally  construed  than  a  will. 

19.  Hence  a  limitation  to  the  heirs  of  the  body  of  the  husband  by 
the  wife  is  construed  as  if  made  to  the  first  and  other  sons  in  tail.  And 
it  seems,  lapse  of  time  will  be  no  bar  to  a  decree  in  equity  for  a  convey- 
ance conformable  to  the  artieles.(2) 

20.  It  is  said,  that  upon  the  construction  of  an  estate  tail  in  the  hus- 
band, the  consideration  of  love  and  affection,  which  he  had  to  his  in- 
tended wife  and  the  heirs  male  of  their  bodies,  would  have  run  thus : 
that  he  did,  in  consideration  thereof,  settle  an  estate  on  himself,  which 

(1)  Bayley  v.  Morris,  4  Ves.  788  ;  (Waker  I  Wrns.  145  ;  1  Abr.  Eq.  387  ;  Trevor  v.  Tre- 
V.  Snowe,  Palm.  359.)  vor,  5  Bro.  Pari.  122. 

(2)  Fearne,    123;  Bale  v.  Coleman,    1   P.  ! 

the  said  J  B,  lawfully  issuing,  according  to  seniority  of  age  and  priority  of  birth,  in  tail 
male;  and  in  default  of  such  issue,  to  the  daughter  or  daughters  of  the  said  J  B.  to  'hold 
to  them,  if  more  than  one,  and  their  heirs,  as  tenants  in  common,  and  not  as  joint  tenants, 
and  in  default  of  issue  of  tlie  said  J  B,  to  and  for  my  own  right  heirs  forever.  Held,  J  B 
took  an  estate  for  life.     Baker  v.  Tucker,  2  Eng.  Law  and  Eq.  1. 

A  testator  directed  that  the  residue  of  his  property  should  be  divided  between  his  brotliers 
and  sisters,  and  the  children  of  a  deceased  sister,  "  to  them  and  their  children  forever."  Held, 
the  latter  clause  gave  the  children  no  share  in  tlie  division  ;  that  the  children  of  the  deceased 
sister  were  not  equal  participants  with  the  other  devisees,  but  that  a  class  was  intended, 
who  took  tlie  slmre  of  their  mother.     Lachland  v.  Downing,  11  B.  Mon.  32. 

A  testator  made  the  following  devise  in  1775 :  "  I  give  to  my  brother  W's  son  N,  during 
his  natural  life,  (after  the  decease  of  my  wife,)  and  to  his  eldest  male  heir,  and  after  his. de- 
cease, and  to  said  male  heirs  and  assigns  forever,  all  and  singular,  my  homestead,  &c  "  At 
the  time  of  making  the  devise.  N  had  no  issue;  but  he  afterwards  had  several  children,  of 
whom  the  tiiird  son  alone  survived  him.  Held,  N  took  a  life  estate  only,  and  at  his  decease, 
his  surviving  son  took  an  estate  in  tail  male.     Canedy  v.  Haskins,  13  Met.  389. 

A  testator  devised  the  use  and  improvement  of  his  real  estate  to  his  wife,  for  her  life,  and 
the  remainder  after  lier  decease  to  his  daughter  A,  and  the  children  of  his  daughter  B,  and 
the  ciiildren  of  liis  daughter  C,  to  them  and  their  heirs  and  assigns  forever  in  fee  "in  man- 
ner following,  namely:  one-third  part  thereof  to  my  said  daughter  A;  one-tiiird  part  thereof 
to  tiie  children  of  my  said  daughter  B,  and  the  survivor  or  survivors  of  them  ;  and  one- third 
part  thereof  to  the  children  and  survivor  or  survivors  of  them,  of  my  said  daughter  C."  Held, 
the  children  of  0  took  vested  remainders,  as  joint  tenants,  on  the  death  of  the  testator. 
Stinpson  v.  Batterman.  5  Cush.  153. 

A  testator  devised  land  to  his  son,  "during  his  natural  life;  but  if  lie  should  marry  and 
have  ciiildren.  tfien  at  his  death  to  his  children  lawfully  begotten,  and  their  heirs  Ibrever." 
The  son  married  and  had  six  children  lawfully  begotten.  Held,  each  of  the  children  took  a 
Tested  remainder  in  one-sixth  part  of  the  land.     Wight  v.  Shaw,  5  Cush    56. 

A  will  had  the  following  clause  :  •'  I  lend  to  my  daughter  Lucy  Camden,  my  negro  woman 
Sidney  and  her  child  Sarah,  and  a  negro  boy  named  John,  to  her  during  her  natural  life,  and 
to  her  heir.«,  lawfully  begotten  on  her  body.  But  should  my  said  daughter  or  her  husband, 
dispose  or  convey  out  of  the  way,  conceal  or  attempt  to  alienate  the  negroes  aforesaid,  I  do 
hereby  declare  her  title  to  cease,  and  direct  my  executors  to  take  them  into  possession  ;  and 
in  such  case,  after  her  decease,  they  and  tlieir  increase  to  be  divided  among  her  children,  if 
any  livhig,  otherwise  to  be  divided  among  my  children.  A,  B,  C  and  D,  and  their  heirs." 
Held,  Lucy  C.  took  a  life  estate,  subject  to  the  condition,  with  remainder  in  fee  to  her  chil- 
dren living  at  her  death,  and  the  heirs  of  such  as  might  be  dead.  Pryor  v.  Duncan,  6 
Gralt.  27. 


CHAP.  LVIII.] 


THE  RULE  IN  SIIKLLEY'S  CASE. 


G-15 


lie  might  give  away  from  his  heirs  male  whenever  he  thought  fit.  Upon 
this  principle,  the  Court  of  Chaneery  will  decree  a  conveyance  conform- 
able to  the  intent  and  purpose  of  the  articles;  even  where  the  parly  has 
already  made  one  precisely  conformable  to  its  language.(l). 

21.  By  articles,  in  consideration  of  a  i)n)posed  maiTiTige  between  A 
and  B,  A  covenants  to  convey  to  trustees  and  their  heirs,  to  the  use  of 
himself  for  life  without  impeachment,  kc,  remainder  to  B  for  life,  re- 
mainder to  the  use  of  the  heirs  male  of  his  body  by  B,  and  the  heirs 
male  of  such  heirs  male,  remainder  to  the  use  of  his  own  right  heirs; 
with  a  covenant,  that  unless  and  until  such  limitations  were  well  raised, 
he  would  stand  seized  to  the  same  uses.  A  afterwards  levied  a  fine, 
anil  settled  the  land  upon  C,  his  second  son.  After  A's  death,  D,  his 
oldest  son,  brings  a  bill  lor  a  conveyance  confoi  inable  to  the  articles. 
Held,  the  articles  were  merely  executory,  notwithi?laiiding  the  covenant 
to  stand  seized,  which  was  but  provisional  and  temporary.  Decreed, 
that  a  conveyance  be  made  to  D,  in  tail  male,  remainder  to  the  other 
sons  in  tail  male.(2) 

22.  The  same  construction  is  given  to  articles,  by  which  the  land  is 
to  be  settled  upon  the  heirs  of  the  body  of  the  wire.(3) 

23.  It  is  said,  that  the  exception  to  the  rule  in  Slidley's  case,  above 
stated,  takes  place  only  where  the  limitation  is  made  to  the  heirs  of  the 
body  of  that  parent  from  whom  the  estate  moves,  or  to  those  of  both 
parents;  thereby  enabling  either  the  father  alone  during  coverture,  on 
the  settling  parent  alone,  surviving  the  other,  to  bar  the  issue.  But 
where  the  limitation,  coming  from  the  husband,  gives  an  estate  tail  to 
the  wife  alone,  neither  parent  alone  can  ever  bar  the  issue — the  husband, 
because  he  takes  no  estiite  tail,  and  the  wife,  not  during  coverture,  being 
then  under  disability,  nor  afterwards,  by  virtue  of  St.  1 L  lien.  VII,  c.  20. 
Hence  the  rule  in  /Shellei/^s  case  is  held  applicable  to  such  a  case ;  the 
law  regarding  the  necessary  concurrence  of  husband  and  wife  in  bar- 
ring the  entailment,  as  a  reasonable  security  for  the  protection  of  the 
issue.(4) 

24.  It  was  agreed  by  marriage  articles,  to  settle  lands  to  the  use  of 
the  husband  for  life,  remainder  to  the  wife  lor  life,  remainder  to  the 
heirs  of  her  body  by  him,  remainder  to  him  in  fee.  Decreed,  that  the 
settlement  be  made  to  the  father  for  life,  remainder  to  the  eldest  son  in* 
tail.(5) 

25.  A  and  B,  upon  their  marriage,  agreed  to  purchase  lands,  and  set- 
tle them  to  the  use  of  A,  the  husband,  for  life,  remainder  to  B  for  life, 
remainder  to  the  use  of  the  heirs  of  her  body  by  him,  remainder  to  the 
heirs  of  the  survivor.  The  lands  hifving  been  purchased,  A  and  B  join 
in  mortgaging  them  by  a  recovery;  and  the  mortgagee  brings  a  bill  to 
foreclose  against  C,  the  son  of  A  and  B,  who  claimed  to  have  a  settle- 
ment made  conformable  to  the  articles.     Judgment  for  the  plaintilf.(6) 

26.  By  marriage  articles,  A  covenanted  to  surrender  customary  lands 
to  the  use  of  himself  for  life,  remainder  to  B  the  wife  for  life,  and,  after 
their  deaths,  to  the  use  of  the  heirs  of  her  body,  if  he  survived  her,  and 


(1)  I  Abr.  Eq  390 ;  Streatfield  v.  Streat- 
fieid,  4  Cruise,  2G4 ;  Cu^ack  v.  Cusack,  5  £ro. 
'Pari.  116. 

(2)-  Trevor  v.  Trevor,  1  Abr..  Eq.  387 ;  5 
Bro.  Pari.  122. 


(3)  Jones  v.  Laugliton,  1  Abr.  Eq.  392. 
{i)  Feariie,  131. 

(5)  Honor  r.  Honor,  1  P.  Wms.  123. 

(6)  Whately  v.  Kemp,  2  Vea.  35S ;  Green 
V.  Ekiua,  2  Atk.  477. 


646  THE  RULE  IN  SHELLEY'S  CASE.  [CHAP.  LVIIL 

of  his  body,  if  she  survived  him,  remaiuder  to  his  own  heirs.  A  sur- 
render was  afterwards  made  by  A  to  these  uses,  and  then  by  A  and  B 
to  the  use  of  themselves  for  their  joint  lives,  and  the  life  of  the  survivor, 
then  of  their  eldest  son  for  life,  then  to  his  first  son  who  should  come  of 
age,  in  fee-simple.  Held,  by  the  terms  of  limitation,  the  entailment 
could  not  be  barred  but  by  the  joint  action  of  A  and  B,  the  survivor 
having  no  power  over  it,  and  that  the  articles  were  well  executed  by 
the  first  surrender.(l) 

27.  Where,  by  the  same  articles,  one  limitation  is  made  in  terms 
which  require  a  strict  settlement  in  favor  of  the  issue,  and  another  in 
the  language  which  applies  ordinarily  to  an  entailment,  the  latter  will 
be  held  to  authorize  an  estate  tail  in  the  husband. 

28.  Agreement  by  marriage  articles,  that  money  should  be  laid  out 
by  trustees  in  lands,  and  settled  on  A  the  husband,  for  life,  remainder 
to  B  the  wife  for  life,  remainder  to  the  first  and  other  sons  successively 
in  tail  male,  chargeable  with  a  payment  for  younger  children,  re- 
mainder to  A  in  fee.  By  the  same  articles,  C,  the  father  of  A,  cove- 
nanted to  settle  other  lands  upon  A,  and  the  Heirs  male  of  his  body,  re- 
mainder to  the  heirs  of  C;  and  he  afterwards  made  the  settlement  in 
these  terms.  Held,  a  good  execution  of  C's  part  of  the  articles,  which 
was  plainly  designed  for  the  benefit  of  A  himself,  the  issue  being  pro- 
vided for  as  purchasers  by  the  other  lands.(2) 

29.  The  Court  of  Chancery  construes  marriage  articles  in  favor  of 
daughters,  as  liberally  as  in  favor  of  sons.  Tlius,  if  an  agreement  is 
made  to  settle  lands  upon  the  heirs  female  of  the  husband  after  prior 
limitations  to  the  heirs  male,  and  the  only  issue  is  a  daughter,  who  dies 
after  a  recovery  suffered  b}^  the  husband,  the  court  will  order  a  con- 
veyance to  two  grand  daughters  in  tail,  as  tenants  in  common,  with 
cross-remainders.(8) 

80.  An  agreement  to  settle  lands  on  the  issue  of  the  marriage  is  con- 
strued to  embrace  females  as  well  as  males,  so  that  a  settlement  will  be 
decreed  to  the  first  and  every  other  son,  and,  for  default  thereof,  to  the 
daughters,  &c.  ;  and  the  reservation  to  the  husband,  of  a  power  to  ap- 
point iJie  sort,  manner  and  form  of  the  provision,  will  give  him  a  con- 
trol over  the  manner  only,  but  not  the  interest  itself (4) 
•  31.  The  rule  applies  in  general  to  a  devise  as  well  as  a  deed,  that 
wherever  lands  aic  given  to  one  for  life,(a)  or  for  "his  natural  life," 
with  an  immediate  remainder  to  his  heirs,  or  the  heirs  of  his  body  ; 
such  heirs  take  by  limitation,  not  by  purchase,  and  an  estate  in  fee- 
simple  or  fee  tail  is  created,  instead  of  a  life  estate  with  a  remainder 
over.  It  is  said,  such  a  limitation  is  not  a  direct  gift  to  the  issue,  it 
only  amounts  to  an  enlargement  of  the  estate  in  the  first  devisee,  con- 

(1)  Highway  v.  Banner,  1  Bro.  584.  ,  Bro.  Pari.  Cas.  225.     (See  Powell  v.  Price,  2 

(2)  Fearne,  135;   Chambers  u.  Cliamhers,  2    P.  Wms.  536.) 

Abr.  Eq.  35;  Howelv.  Howel,  2  Ves.  358.  (4)  Hart  v.  Middlehurst,  3  Atk.    371;  Dod 

(3)  West  V.  Errissey,  2    P.    Wms.  349;    1  \  v.  Dod,  Ambl.  274. 


(a)  The  principle  of  controlling  an  express  estate  for  life  by  the  iniplication  arising  from 
subsequent  words  of  entailment  in  the  will,  has  received  the  somewhat  strained  apology, 
that  such  construction  "  does  not  defeat  the  estate  for  life;  for  without  fine  or  recoverj', 
which  is  not  to  I'e  presumed,  an  estate  tail  is  only  an  estate  for  life."  Per  Ld.  Ch.  J.  Wil- 
mot,  Dodson  v.  Grew,  Wilm.  278. 


CHAP.  LYIir.] 


THE  RULE  TN  SHELLEY'S  CASE. 


647 


verting  a  life  estate  into  a  fee-simple  or  fee  tail,  and  rendering  it  there- 
by transmissible  to  his  issue.(l) 

32.  The  same  eonstruction  is  adopted,  though  there  are  other  pro- 
visions in  the  will  besides  the  express  limitation  for  life,  showing  an 
intent  to  give  a  life  estate  onIy.('.^)  ,_ 

33.  Thus,  a  devise  to  trustees,  directing  that  they  allow  A  to  lake 
the  profits  for  life,  and  afterwards  stand  seized  to  the  use  of  the  heirs  of 
his  body,  and  authorizing  A  and  the  trustees  to  maJce  a  jointure  to  his 
vjije,  gives  A  an  estate  tail. (3) 

34.  So  a  power  of  leasing,  given  to  the  devisee  for  life,  does  not 
prevent  his  taking  an  estate  tail,  because  such  power  is  more  beneficial 
than  that  which  belongs  to  a  tenant  in  tail. (4) 

35.  So  where  lands  were  devised  to  A  for  life,  without  impeachment 
of  waste,  remainder  to  trustees  and  their  heirs  lor  the  life  of  A,  to  sup- 
port  contingent  remainders,  remainder  to  the  heirs  of  the  botly  of  A  ;  held 
by  Lord  King,  in  reversal  of  Sir  J.  Jekyll's  decision,  that  A  took  an 
estate  tail. (5) 

3d.  A  fortiori,  the  interposition  of  an  estate  to  trustees,  to  preserve 
contingent  remainders,  will  not  reduce  the  interest  of  a  devisee  to  an  es- 
tate for  life,  where  the  devise  is  made  to  him,  and  the  heirs  of  his 
hody.{G) 

37.  The  rule  above  stated  is  equally  applicable,  where  the  remainder 
is  limited  by  the  word  heir  instead  of  heirs. 

38.  Devise  to  A  for  life,  remainder  to  the  next  heir  male;  in  default 
of  such  heir,  remainder  over.     A  takes  an  estate  tail. (7.) 

39.  Devise  to  A,  the  testator's  youngest  son,  forever ;  and,  after  his 
death,  to  the  heir  male  of  his  body  forever.  In  default  of  such  heir 
male,  to  B,  his  eldest  son,  forever.     A  takes^an  estate  tail. (8) 

39  a.  Devise  :  "  I  give  and  bequeath  to  my  grandson  D,  my  dwelling- 
house  wherein  I  naw  live,  he  to  take  possession  of  the  same  at  the  age 
of  twenty-one  years;  to  hold  the  same  to  him  during  his  life,  and  at 
and  uj)on  his  decease,  I  give  the  same  dwelling-house  to  the  eldest  male 
heir  of  his  body  lawfully  begotten,  and  upon  the  decease  of  such  male 
heir,  to  the  male  heir  of  said  deceased  and  his  heirs  forever.  And  in 
case  my  said  grandson  shall  not  leave  any  male  hei][s,  I  then  give  said 
house  to  his  next  eldest  brother  during  his  life,  and  upon  his  decease 
to 'his  eldest  male  heir,  lawfully  begotten,  and  to  his  heirs  forever." 
Held,  D.  took  an  estate  tad. (9) 

40.  Words  of  limitation,  added  to  the  word  heir,  may  require  a  dif- 
ferent construction  ;  {infra,  s.  47,)  but  a  liinitalion  to  the  next  heir  male, 
creates  an  estate  tail. (10) 

41.  So  the  word  first,  prefixed  to  heir  male,  shall  be  understood  first 
in  order  of  succession  from  time  to  time,  and  an  estate  tail  shall  pass. 

42.  Devise  to  A,  the  first  .son  of  the  testator,  for  life,  remainder  to 
the  heirs  male  of  his  body,  remainder  to  B,  a  second  son,  for  life,  and 


(1)  Lejrate  v.  Sewell,  1  P.Wms.  87  ;  Haw- 
ley  V.  Norihmnpton,  8  Mass  3 ;  Rundale  v. 
Eeley,  Cart.  170;  G  Cruisu,  240;  James.  Ac. 
Dall.  49;  Sayer  v   Ma.sUTiniin,  .Vmb.  344. 

(2)  Cam'.  Purter,  1  McConi's  Clia.  81. 

(3)  Bro\inhton  v.  Langley,  2  Ld.  Ray,  873. 

(4)  Bale  v.  Coleman,  1  P.  Wma.  142. 


(5)  Papillon  v.  Voice,  2  P.  Wins  471. 
(C)  Sayerv.  Maatennaii,  Amb.  344. 

(7)  Burley'8  case,  1  Vuiit.  230. 

(8)  \yilkiri3t;.Wliilin!:,  1  Rollo's  Abr.  836; 
Bulstr.  219;  Richards  v.  Bergavenny,  2 
Vern.  324. 

(9)  Malcolm  v.  Malcolm,  3  Cush.  472. 

(10)  Miller  v.  Soagrave,  6  Cruise,  245. 


g48  'SHE  RULE  IN  SHELLEY'S  CASE.  [CHAP.  LYIII 

after  bis  death  to  the  first  heir  male  of  his  body.     B  takes  an  estate  tail, 
this  construction  being  favored  by  the  prior  devise.(l) 

43.  The  same  rule  appbes,  aUhough  additional  words  of  limitation 
are  annexed  to  the  words  heirs  or  heirs  of  tJie  body. 

44.  Devise  to  A  for  life,  and  after  his  death,  devise  of  the  s:ime  land 
to  the  heirs  males  of  his  body,  and  his  heirs  forever ;  but  if  A  sliould 
die  without  such  heir  male,  devise  over.  Held,  the  words  his  &nd  if ^  he 
died,  &c.,  being  of  doubtful  import,  could  not  control  the  prior  limita- 
tion to  heirs  male,  and  make  it  descriptio  persons;  and  that  A  took  an 
estate  tail. (2) 

45.  Devise  to  A  for  the  term  of  his  natural  life,  and  after  his  death, 
to  the  heirs  males  of  his  body,  and  the  heirs  male  of  the  body  of  every 
such  heir  male,  severally  and  successively,  as  they  should  be  in  priority 
of  birth ;  and  for  want  of  such  issue  to  B,  &c.  Held,  by  three  judges, 
and  Lord  Cowper  in  Chancery,  against  one  judge,  that  A  took  an  estate 
tail.(8) 

46.  Devise  to  A  during  her  natural  life.  Then  to  the  heirs  of  the 
body  of  A,  and  to  his  or  her  heirs  forever,  after  A's  decease.  For 
want  of  such  heirs  of  the  body  of  A,  then,  after  A's  decease,  to  the 
testator's  own  next  heirs,  and  their  heirs  forever.  Held,  A  took  an 
estate  tail,  with  a  remainder  to  the  right  heirs  of  the  testator.(4) 

47.  In  sumo  special  cases,  however,  the  effect  of  the  word  heirs  may 
be  controlled  by  following  words  of  limitation. (5) 

48.  In  general,  the  rule  in  Shelley's  case  is  applicable  to  trusts  in 
Chancery,  as  well  as  legal  estates  in  a  court  of  law.  This  is  the  case, 
where  by  the  will  the  trusts  are  fully  limited  and  declared.  It  may  be 
otherwise  where  the  limitations  are  imperfect,  and  something  is  left  to 
be  done  by  the  trustees  in  the  first  place,  and  consequently  secondarily 
by  the  Court  of  Chancery. (6)(a) 

49.  A  testator  devised  to  four  persons  and  their  heirs,  for  payment 
of  debts,  and  afterwards  to  the  use  of  them  and  their  heirs.  After- 
wards, by  a  codicil,  he  ordered  that  after  payment  of  debts.  A,  one  of 
the  devisees,  should  have  his  share  to  himself  for  life,  with  a  power  to 
lease,  remainder  to  the  heirs  male  of  his  body,  &c.  Held,  by  Lord 
Harcourt,  reversing  the  decision  of  Lord  Cowper,  that  a  will,  being 
voluntary,  was  nut  like  marriage  articles,  under  which  they  issue  claim 
as  purchasers,  and  whose  object  would  be  defeated  by  a  power  in  the 
husband  to  alienate,  but  the  intent  of  the  testator  must  be  presumed 
to  conform  to  the  rules  of  law,  according  to  which,  in  this  case,  an  estate 
tail  was  clearly  created  ;  and  that  the  debts  being  paid,  the  case  was  as 
if  there  had  been  no  trust.  Decreed,  that  A's  share  be  conveyed  to 
him  and  the  heirs  male  of  his  bod}^,  &c.(7) 

50.  A  contrary  doctrine  seems  to  have  been  afterwards  laid  down  by 
Lord  Hardwicke. 


(1)  Duhber  v.  Trollope,  Arab.  453. 

(2)  Goodright  v.  Pullyn,  2  Ld.  Ray,  143*?  ; 
2  Sir.  729. 

(3)  Legate  v.  Sewell,  1  P.  Wms.  87. 


(5)  6  Cruise,  247. 

(6)  Austen  v.  Taylor,  Amb.  376 ;  Wright 
V.  Peanson,  Amb.  358:  Fearne,  187.  See 
Clagett  V.  Wortliington.  3  Gill,  83. 


(4)  Morris  v.  Ward,  8  T.  R.  518.  '      (7)  Bale  v.  Colmari,  1  P.  Wqis.  142 


(a)  In  case  of  executory  trusts,  "heirs  of  the  body,"  though  preceded  by  a  life  estate  to 
the  cestui,  are  construed  as  words  of  purchase,  not  of  limitation.  Tallman  v.  Wood,  26 
Wend.  1 ;  Berry  v.  Williamson,  11  B.  Mon.  245  ;  Porter  v.  Doby,  2  Rich.  Equ.  49. 


CHAP.  LVIir.]  THE  RULK  I>T  SHELLEY'S  CASE.  019 

51.  Devise  to  trustees  in  fee,  in  trust  to  pay  debts,  by  the  rents  and 
profits,  sale  or  mortgage  ;  then  to  the  trustees  for  a  long  term,  upon 
certain  trusts ;  then  to  the  trustees  in  fee,  in  trust,  as  to  one  m<jiety,  to 
the  use  of  A  for  his  natural  life,  without  impeachment  of  waste  ;  after- 
wards to  the  trustees  in  fee  for  the  life  of  A,  to  prescrKc^contingent  re- 
mainders, but  to  permit  A  to  receive  the  rents  and  i)rofits  during  his 
natural  life;  after  his  death,  to  the  use  and  behoof  of  the  heirs  of  the 
body  of  A  ;  and,  for  want  of  such  issue,  to  B  in  the  same  manner. 
Held,  by  Lord  ILirdwicke,  in  regard  to  the  estate  of  B,  that  a  convey- 
ance, if  prayed  for,  would  have  been  decreed  first  to  trustees  to  pre- 
serve, &c.,  then  to  the  first  and  other  sons  of  B  ;  that  there  were  no  con- 
tingent remainders  to  be  preserved,  unless  the  limitation  to  B's  heirs 
made  one  ;  and  that  B  therefore  took  a  life  estate.(l) 

62.  But  in  a  subsequent  case  Lo:d  Hardwicke  remarked,  that  Bag- 
shaio  v.  Spencer  was  decided  upon  the  ground,  that  the  intent  thei'e  ap- 
peared to  contradict  and  overrule  the  legal  construction  ;  and  that  un- 
less such  intent  w\?s  shown  either  expressly  or  by  necessary  implication, 
equity  would  adopt  the  rules  of  law.  Lord  iteeper  Henle}^  also  placed 
this  decision  upon  the  ground  of  a  special  intention,  shown  by  the  cir- 
cumstances of  a  trust  and  the  peculiar  limitations  of  the  will. (2) 

53.  Devise  to  A,  in  trust  to  pay  the  rents  to  B  for  her  life,  and  after 
her  death  to  pay  the  same  to  C  for  life,  and  afterwards  to  pay  the  same 
to  the  heirs  of  his  bod3^  Ueld,  by  Lord  Hardwicke,  that  a  convey- 
ance in  tail  should  be  decreed  to  C.(3) 

64.  Devise  to  trustees  in  fee,  in  trust  to  raise  money  for  grand- 
children of  the  testator,  subject  thereto  to  the  use  of  A  and  assigns  for 
life,  remainder  to  trustees  to  preserve,  &c.,  remainder  to  the  use  of 
the  heirs  male  of  A  begotten,  anc?  their  heirs.  ^  If  A  should  die,  leaving 
no  issue  male  living,  then  the  land  to  be  charged  with  sums  of  money. 
For  default  of  such  issue  male  of  A^  devise  to  the  grandchildren,  or  such 
as  should  be  living  at  the  failure  of  such  issue,  their  heirs  and  assigns. 
Provided,  that  if  A  did  not  comply  with  certain  conditions,  the  estate, 
so  limited  to  him  for  life,  to  cease  as  if  he  were  dead  ;  and  the  estate  so 
limited  to  him  for  life,  and  his  issue  male,  to  go  to  such  of  his  grand- 
children as  should  be  living,  and  their  heirs.  Held,  according  to  the 
manifest  intent,  the  heirs  male  of  A  could  not  take  as  purchasers,  be- 
cause they  would  then  take  a  fee-simple,  which  would  avoid  the  subse- 
quent limitations;  that  the  words  for  default  of  such  issue  male  could 
not  apply  to  the  issue  male  of  the  children  of  A,  thereby  giving  A  a 
life  estate,  his  children  an  estate  tail,  and  the  remainder  to  the  grand- 
children ;  but  that  the  words  and  their  lieirs  must  be  rejected  as  sur- 
plusage, making  A  to  be  tenant  in  tail.(4) 

55.  Devise  to  trustees  in  fee,  in  trust  for  A  for  life,  remainder  to 
trustees  to  preserve,  &;c.,  remainder  to  the  heirs  of  the  body  of  A,  re- 
mainder to  the  heirs  of  the  testator.  The  will  proceeded  to  bequeath 
the  personal  estate  to  trustees,  to  be  laid  out  in  lands,  which  should  be 
subject  to  the  limitations  and  trusts  already  mentioned.  Upon  a  bill 
to  have  it  thus  laid  out,  held,  that  in  this  case  the  trusts  were  all  de- 
clared by  the  will,  and  the  trustees  had  nothing  to  do,  but  buy  the 

(1)  Bijjjshaw  V.  Spencer,  1  Col,  Jnrid.  .S78.   I      (3)  Gartli  v.  Baldwin,  2  Ves.  646. 

(2)  G-irth  V  Baldwin,  2  Ves.  6-16;  Wright  |  (4)  Wright  v.  Pearson,  Amb.  358  ;  Fearne, 
V.  Pearson,  Amb.  353.  I  187. 


650 


THE  RULE  IN  SHELLEY'S  CASE. 


[CHAP.  LYIII. 


land;  that  there  was  no  necessity  for  their  making  a  conveyance;  and 
that  equity  couM  not  interfere  to  vary  the  legal  construction,  by  which 
A  toolc  an  estate  tail.(l) 

56.  The  rule  in  SJielley'^s  case  applies  to  a  devise  for  years  as  well  as 
for  life,  unless  the  will  discovers  an  intention  that  the  heir  shouUl  take 
as  purchaser.  Thus,  if  a  term  be  devised  to  one  for  life,  remainder  to 
the  heirs  of  his  body,  A  takes  an  estate  tail.(2)(a) 

57.  The  rule  does  not  apply,  where  the  words  children,  sons,  &c.,  are 
used  instead  of  heirs.  Thus,  a  devise  to  A  for  life,  remainder  to  his 
sons  or  children,  &c.,  gives  A  a  life  estate.(3) 

58.  Devise  to  the  testator's  son  A  for  life,  and,  after  his  deatli,  to  his 
male  children,  successively,  one  after  another,  as  they  were  in  priority 
of  age,  and  to  their  heirs ;  and  in  default  of  such  male  children,  then 
to  A's  female  children  and  their  heirs,  and  if  A  died  without  issue, 
then  to  the  testator's  grandson  in  fee.  Held,  A  took  neither  an  imme- 
diate estate  tail  by  the  limitation  to  his  children,  nor  an  estate  tail  in 
remainder  by  implication,  under  the  clause  "  if  A  died  without 
issue,"  &c.(4) 

59.  Devise  to  A  for  life,  and  that  then  the  premises  shall  descend 
and  come  to  his  male  children,  if  he  have  any,  for  life,  and  to  the  male 
children  descending  from  them.     A  takes  a  life  estate.(5) 

60.  Devise  to  A,  the  son  of  the  testator,  for  life,  and  after  his  death 
to  all  and  every  his  children  equally,  and  their  heirs  :  and  if  A  died 
without  issue,  then  to  the  testator's  daughters.     A  takes  a  life  estate.(6) 

61.  Devise,  to  the  testator's  wife,  of  the  use,  &c.,  of  one-third  of  the 
estate  for  her  life,  at  her  death  to  his  children,  their  heirs,  &c.  The 
children' take  a  vested  remainder  in  fee.(7) 

6i.  It  has  been  seen,  that  the  rule  in  question  is  sometimes  held  ap- 
plicable, though  other  words  are  added  to  the  word  heirs,  which  modify 
its  signification.  It  is  said,  there  is  an  old  opinion  of  Lord  Holt's,  to  the 
effect,  that  the  words  heirs  of  the  body  are  so  positive  to  give  an  estate 
tail  to  the  first  taker,  that  they  cannot  be  got  rid  of  by  subsequent  words. 
But  Lord  Kenyon  remarked,  that  this  was  certainly  too  strait-laced  a 
construction.  And  the  principle  seems  to  be  now  well  settled,  that 
where  there  are  other  words  showing  that  by  heirs  was  meant  descriptio 
personce,  the  first  devisee  takes  only  a  life  estate,  with  a  remainder  to 
his  heirs.  The  distinction  is  said  to  be  this.  AVhere  the  superadded 
words  limit  an  estate  to  the  heirs,  of  a  different  nature  from  that  which 
the  ancestor  would  take,  if  tlie  word  heii's  was  construed  as  a  word  of 
limitation  ;  the  heirs  take  as  purchasers.  Thus,  a  limitation  to  the  use 
of  A  for  life,  and  after  his  death  to  the  use  of  his  heirs,  and  the  heirs 
female  of  their  bodies,  gives  A  a  life  estate,  and  his  heirs,  as  purchasers, 
an  estate  tail  female ;  for  if  the  heirs  of  A  took  by  descent,  then  A 
would  have  the  fee-simple,  and  the  last  clause  of  the  devise  would  be 


(1)  Auaten  v.  Taylor,  Amh.  376. 

(2)  Do'i  V.  Dickinson,  8  Via.  Abr.  451,  pi. 
25;  Home  v.  Lyeth,  4  Hur.  &  J.  43L 

(3)  6  Cruise,  253  ;  King  v.  Melling,  1  Yent. 
231. 


(4)  Ginger  v.  White,  Willes,  348. 

(5)  Gooiititle  u   Woodhul!-,  WiHes.  592. 

(6)  Goodright  v.  Dunham,  Doug   264. 

(7)  Nash  V.  Butler,  16  Pick.  491. 


(a)  See  Adams  v.  Crufl,  14  Pick.  16.  Tu  South  Carolina,  the  rule  was  held  applicable  to 
a  devise  of  negroes;  and  the  limitation  of  an  estate  tail  being  too  remote  for  personal  pro- 
perty, the  devisee  for  life  took  an  absolute  title.     Dott  v.  Cuanington,  1  Bay,  453. 


CHAP.  LVrir.]  THE  RULK  IN  SHELLEY'S  CASE.  651 

defeated,  nor  would  there  be  any  possible  mode  of  giving  it  eflect. 
But,  on  the  other  hand,  where  the  superadded  words  do  not  oj)pose  or 
contradict  those  preceding,  but  in  their  general  sense  include  them  ;  the 
heirs  will  take  by  descent  v\s  where  the  first  words  describe  heirs 
special,  and  the  following  words  extend  to  such  heirs-;-in  which  case 
it  may  be  supposed  that  the  latter  were  used  in  the  same  qualified 
sense  as  the  Ibriner.  It  has  already  been  seen,  that  where  the  iirst 
words  give  an  estate  tail  general,  which  the  succeeding  words  serve  to 
limit,  the  latter  words  are  lu^t  to  be  attended  to,  and  the  rule  in  Sln^Hey's 
case  aj)plies.(l) 

63.  Devise  to  trustees,  in  trust  for  A  and  her  assigns,  for  life,  with- 
out impeachment  of  waste,  remainder  to  the  trustees  to  preserve,  &c.  ; 
and  from  and  after  her  death,  in  trust  for  her  heirs  male,  severally,  suc- 
cessively, and  in  remainder,  one  alter  another,  as  they  and  any  of  them 
should  be  in  seniority  of  age,  &;c.,  the  elder  of  mch  soxs,  and  the  heirs 
of  his  body,  &e.,  being  always  preferred,  and  to  take  before  the  younger 
and  the  heirs  male  of  his  and  their  body  and  bodies;  and  in  default  of 
such  i.ssue,  for  all  and  every  the  daughter  and  daughters  of  A,  as 
tenants  in  common,  &c.,  and  the  several  and  respective  heirs  of  their 
bodies;  in  default  of  such  issue,  remainder  over.  Held,  the  will  showed 
a  clear  intention  to  give  A  only  a  life-estate;  that  the  limitations  follow- 
ing the  devise  to  A  were  wholly  needless,  if  A  took  an  estate  tail ; 
that  the  words  heirs  male  of  tlie  body  of  A  were  descriptive  of  the  per- 
sons afterwards  called  such  sons,  and  the  construction  was  to  be  the 
same,  as  if  it  had  been  said,  "meaning  by  heirs,  &c.,  the  eldest  and 
other  sons  of  A  ;"  and  this  construction  was  confirmed  by  the  subse- 
quent provision  for  the  daughters.  That  although,  upon  this  construc- 
tion, if  A's  eldest  son  had  died  before  the  testator,  leaving  a  son,  this 
son  could  not  take,  but  the  devise  must  lapse;  such  possible  inconve- 
nience could  not  control  the  will  and  enlarge  A's  estate  ;  and  that  A 
took  a  life  estate.(2) 

61.  But  in  another  case,  very  similar  to  the  last  one,  a  different  doc- 
trine seems  to  have  been  held. 

65.  Devise  to  trustees  and  their  heirs,  in  trust  for  the  testator's  first 
son  for  life,  and  to  preserve,  &;c.  After  his  death,  to  the  several  heirs 
male  of  such  son  lawfully  issuing,  the  elder  of  such  sons  and  the  heirs 
male  of  his  body,  taking  before  the  younger  and  his  heirs  male.  For 
want  of  such  issue,  in  trust  for  his  second,  &e.,  and  all  and  every  other 
son  and  sons,  for  their  respective  lives,  with  remainders  as  before  ;  and 
for  want  of  such  issue,  for  his  first  daughter,  and  every  other  his  daugh- 
ter and  daughters  for  their  several  lives,  and  upon  trust  to  preserve, 
&c. ;  and  from  and  after  their  several  deaths,  in  trust  for  the  several 
heirs  male  of  their  bodies,  giving  the  same  preference  to  the  elder  as 
above  mentioned  ;  with  a  power  to  the  parties  holding  the  land  to 
settle  jointures.  Held,  a  son  of  the  testator  took  an  estate  tail ;  a  con- 
trary intention  not  sufficiently  appearing.(8) 

66.  In  some  cases,  where  the  word  heir  is  used,  with  sujxTadded 
words  of  limitation,  it  is  construed  a  term  of  purc'nase,  and  the  first 
devisee  takes  only  a  life  estate. 

67.  Devise  to  A  for  life,  afterwards  to  his  next  heir  male,  and  the 

(1)  Fearne,   28«;   1   Rep.  95  b;  Lyles  v.  I      (2)  fioodtitle  r.  Herrin?,  1  K.  2»U. 
Digge,  6  Har.  ft  J.  364.  |      (3)  Poolo  ».  Poole,  3  Bos.  &  P.  620. 


652 


THE  RULE  IN  SHELLEY'S  CASE. 


[CHAR  LYIIL 


beirs  male  of  the  body  of  such  next  heir  male,     A  takes  a  life  es- 
tate.(l) 

68.  The  same  construction  is  given,  where  the  heir  of  the  devisee 
for  life  is  to  have  only  a  life  estate.  And  though  there  is  a  subsequent 
limitation  over  "'for  want  o? such  heir  male"  this  shall  be  held  to  mean 
not  heirs  male  generally,  but  the  heir  previously  mentioned,  who  was 
to  take  for  life.(2) 

69.  Devise  to  A,  "to  be  hers  during  her  natural  life,  and  then  to 
her  only  heir  during  its  life."  A  takes  a  life  estate,  with  a  contingent 
remainder  to  the  person  who  shall  be  her  heir  at  her  death. (8) 

70.  In  a  will,  the  word  issue  is  a  word  of  purchase  or  of  limitation 
according  to  the  intention  ;  while  in  a  deed  it  is  always  a  word  of  pur- 
chase.(a)  The  intention  of  the  testator  in  using  this  expression,  is 
often  inferred  from  very  slight  circumstances  peculiar  to  each  case; 
and  hence  the  decisions  upon  the  subject  seem  not  easily  recoucila- 
ble.(4) 

71.  Devise  to  A  for  life,  and,  if  he  should  have  any  issue  male,  to 
such  issue  and  his  heirs  forever.  For  want  of  issue  male,  devise  over. 
A  takes  a  life  estate,  and  his  issue  as  purchasers  in  fee. (5) 

72.  But  it  has  been  held  in  New  York,  that  a  devise  to  A  for  life, 
on  her  death  to  her  lawful  issue  and  their  heirs  forever,  equally  to  be 
divided,  gives  an  estate  tail  by  the  English  law,  and,  in  New  York,  a 
fee-simple. (6) 

73.  Devise  to  A  for  life,  remainder  to  his  lawful  issue.  A  takes  an 
estate  tail. (7) 

7-4.  Devise  of  the  residue,  &c.,  to  be  divided  between  A  and  B,  and 
delivered  to  them  at  the  age  of  twenty -one  years ;  but  "should  they 
die,  leaving  no  lawful  issue,"  devise  of  all  my  estate  to  C.  B  takes  the 
fee,  and  his  issue  can  claim  only  by  descent,  not  by  purchase. 

75.  Even  where  the  limitation  is  made  to  the  heirs  of  the  body  of 
the  issue  of  tenant  for  life,  in  such  a  way,  that  giving  the  first  taker  an 
estate  tail  would  pass  the  land  in  the  same  lin<|  of  descent  as  giving 
him  a  life  estate  ;  the  issue  have  been  held  to  take  by  purchase. 

76.  Devise  to  A  for  life  onIy,{b)  without  impeachment  of  waste,  then 
to  the  issue  male  of  his  body,  if  any,  remainder  to  the  heirs  male  of 
the  body  of  that  issue.  A  takes  a  life  estate,  with  remainder  to  the 
issue  in  tail. (8) 

77.  Where  the  general  intent  so  requires,  the  word  issue  will  give 
the  first  devisee  an  estate  tail,  though  followed  by  other  words  of 
limitation. 

78.  Devise  to  A,  for  his  natural  life,  and  from  and  immediately  after 


(1)  Archer's  case,  1  Rep.  6Gb;  (3  B.  &  P. 
"625  ;  Dubber  v.  Trollope,  Amb.  459.) 

(2)  White  V.  Collins,  Com.  R.  289. 

(3)  Bennett  v.  Morris,  5  Rawle,  9. 

(4)  4  T.  R.  294;  1  Vent.  225  ;  Papillon  v. 
Voice,  2  P.  Wins.  472;  Carr  v.  Porter,  1 
McGord's  Cha.  81;  Home  v.  Lyeth,  4  Har. 
&  J.  431;   (3  J.  J.  Mar.  238.) 


(5)  Luddington  v  Kime,  1  Ld.  Rayni.  203; 
Doe  V.  Collins,  4  T.  R.  294 ;  (Findlay  v.  Rid- 
dle, 3  Binn.  139.) 

(6)  Kingsland  v.  Rapelye,  4  Kent,  231. 

(7)  James's  Claim,  1  Dall.  47. 

(8)  Carr  v.  Porter,  1  McCord's  Cha.  Si. 

(9)  Backhouse  v.  Wells,  10  Mod.  181. 


(a)  Ld.  Ch.  J.  Wilraot  remarked,  that  the  word  issue  is  used  in  the  statute  de  donis  with- 
out an  idea  ofpurcliase  annexed  to  it.  Dodson  v.  Grew,  Wilm.  277,  2  Wils.  322.  In  New 
Hami)sliire,  tlie  word  issue  is.  defined  to  mean  all  lawful  lineal  descendants.     Rev.  St.  45. 

{h)  The  case  is  said  to  have  turned  upon  the  use  of  this  word.     4  T.  R.  296,''n. 


CHAP.  LVriL]  TIIK  RULE  IN"  SHELLEY'S  CASE.  653 

the  tunninatioa  of  that  estate,  to  the  issue  male  of  his  body,  and  to  his 
and  their  heirs,  share  and  share  ahke,  if  more  than  one  ;  and,  Jar  want 
o/such  issue,  to  B  in  fee.  Provided,  that  if /i  s/iould  alienate,  he  should 
pay  a  certain  sum  to  the  party  next  entitled,  lleld,  if  the  issue  of  A 
took  by  purchase,  they  would  be  tenants  in  common ;, that  il'  all  but 
one  died  before  A,  he  vvouhl  take  the  whole  ;  that  the  words  for  icant 
of  such  issue,  meant  for  default  of  such  issue,  and  supjjosed  the  inheritance 
vested  in  A,  but  liable  to  be  defeated  by  his  death  without  issue,  and 
could  not  be  confined  to  issue  living  at  A's  death  ;  that  the  clause 
restraining  alienation  by  A  implied  that  he  was  to  have  the  inherit- 
ance;  that  the  added  words  of  limitation  "his  and  their  heirs"  should 
be  rejected  to  effect  the  intention  ;  and  that  A  took  an  estate  tail.(l) 

79.  Devise  to  A,  a  nephew  of  the  testator,  for  his  natural  life,  and, 
from  his  death,  to  the  use  of  his  issue  male,  and  the  heirs  male  of  the 
body  of  such  issue  ;  and  for  want  of  sucli  issue  male,  to  B,  another 
ne})hew,  in  fee-simple.  Held:  1.  The  will  intended  a  successive  in- 
heritance to  all  the  issue  male  of  A,  ad  infinitum,  since  B  was  to  take 
onl}^  upon  the  failure  of  such  issue.  That  the  word  issue,  unqualified, 
was  plural,  and  embraced  all ;  and  the  word  body,  though  singular,  was 
not  meant  to  point  out  one  individual,  viz.,  the  first  issue,  and  exclude 
the  rest,  but  to  limit  the  devise  to  one  at  a  time  in  a  course  of  succes- 
sion, and  exclude  the  issue  from  taking  all  together,  as  they  might 
have  done  if  the  word  bodies  were  used  ;  that  if  the  issue  took  by  pur- 
chase, they  would  be  joint  tenants  for  life  and  tenants  in  common  of 
the  inheritance,  and  the  surviving  son  of  A  would  take  the  whole  for 
life,  the  other  sons  being  dead,  and,  upon  his  death,  the  estate  must 
break  into  ten  parts,  with  no  cross-remainders,  and  upon  failure  of  the 
issue  of  one  son,  that  j)art  would  go  to  B,  thus  contradicting  the  evi- 
dent intention  for  B  to  have  nothing,  while  there  remained  any  issue 
of  A.  2.  That  the  intention  of  the  testator  could  not  be  affected  by 
giving  A  a  life  estate,  unless  the  word  issue  was  consti'ued  to  mean  the 
first  and  other  sons  of  A  in  succession.  This  construction  might  be 
given,  if  the  will  had  expressly  so  ordered,  but  not.  otherwise,  without 
doing  violence  to  the  meaning  of  language.  Issue  has  an  established 
collective  sense,  and  though,  after  an  estate  tail  is  created,  it  passes  suc- 
cessivel}''  to  tlie  first  and  other  sons  ;  yet  this  is  the  operation  of  law,  and 
not  the  effect  of  the  words  in  the  will.  Whereas,  to  construe  the  word 
as  a  limitation  would  effect  the  same  object,  vrithout  distorting  the  lan- 
guage. Mi^reover,  the  former  construction  would  vest  the  remainder 
in  each  son  of  A  when  born,  and  he  might  by  fine  bar  all  his  issue. 
That,  although,  supposing  the  first  son  of  A  to  take  by  purchase,  the 
others  might  take  by  limitation,  upon  the  principle  that  where  an  estate 
once  vests  in  an  heir  of  the  body  of  one  as  purchaser,  it  is  quasi  an  estate 
tail  from  the  ancestor,  and  passes  to  his  descendants,  as  well  as  those 
of  the  purchaser;  yet  the  intention  might  still  in  this  case  be  di^feated. 
If  B,  a  second  son  of  A,  dii  d,  leaving  daughters,  in  the  life  of  A,  and 
A  left  other  sons  ;  then,  upon  this  construction,  the  daughters  would 
take  nothing,  becaus '  B  was  never  complete  heir  to  A;  while,  by 
limitation,  such  daughters  would  take,  as  representing  B,  in  regular  suc- 
cession.    3.  That  the  intention  in  favor  of  all  the  issue  of  A  ought  to 

(1)  King  V.  Burcliall,  4  T.  R.  206,  n. ;  (1  Eden,  424.) 


651  TEE  RULE  IX  SHELLEY'S  CASE.  [CHAP.  LVIIL 

prevail  over  the  express  limitation  to  him  for  life;  and  although  the 
issue  and  remainder-men  were  thus  put  in  his  power,  it  was  not  to  be 
presumed  he  would  exercise  it,  and  that,  if  A  took  only  a  life  estate, 
this  would  create  contingent  remainders  which  he  might  defeat;  so 
that  the  chance  of  the  issue  was  better  in  the  former  case  than  in  the 
latter.     Held,  A  took  an  estate  tail.(l) 

fcO.  Devise  to  A  for  life,  and  if  he  die  leaving  lawful  issue,  remainder 
to  his  heirs  as  tenants  in  common,  and  their  respective  heirs  and  assigns. 
A  takt-s  a  life  estate.(2) 

81.  It  has  been  stated  that  the  rule  in  Shelley  s  case  is  in  general 
applicable  to  trusts,  as  well  as  legal  estates;  that  in  this,  as  in  many- 
other  respects,  equity  follows  the  law.  It  was  al.-^o  intimated,  and  now 
remains  to  be  more  distinctly  stated,  as  a  quaHtication  of  the  general 
principle;  that  where  a  trust  is  executory ^{a)  or  wliere,  for  the  comple- 
tioa  and  fulfilment  thereof,  the  action  of  the  trustees  and  the  interpo- 
sition of  Chancery  are  requisite,  the  court  will,  to  effect  the  intention 
of  the  parties,  construe  the  word  heiis  or  issue  as  a  word  of  purchase, 
and  d(;cree  a  conveyance  and  limitation  accordingly.  The  court  take 
much  greater  liberties  in  the  construction  of  executory  than  of  executed 
trusts. (8)  And  a  devise,  in  this  respect,  is  construed  like  marriage 
articles.  It  will  be  seen,  that  where  the  Court  of  Ch;mcery  directs  a 
limitation  not  creating  an  estate  tail,  it  at  tljc  same  time  inserts  other 
limitations,  not  provided  for  by  the  parties,  but  rendered  desirable  by 
the  creation  of  a  life  estate  with  contingent  remainders;  as,  for  instance, 
an  intervening  estate  to  trustees  to  j)reserve,  &e. 

82.  This  construction  has  been  adopted,  even  where  entailment  was 
expressly  mentioned  in  the  will. 

83.  Devise  to  trustees  and  their  heirs,  for  payment  of  debts,  &c.,  and 
afterwards  to  settle  the  remainder  and  what  was  left  unsold,  a  moiety 
to  A  and  the  heirs  of  his  bodj'  by  a  second  wife,  and  in  default  of  such 
issue,  to  B  and  the  heirs  of  his  body — the  other  moiety  to  B  and  the 
heirs  of  his  body  ;  remainders  over:  taking  special  care  in  such  settle- 
ment that  A  and  B  should  have  no  |)Ower  to  dock  the  entails,  during 
their  lives.  Held,  A  and  B  were  entitled  to  have  the  land  conveyed 
to  them  only  for  life,  without  impeachment,  &c. ;  because,  if  conveyed 
in  tail,  they  could  not  be  prevented  from  barring  their  children. (4) 

84.  Devise  of  a  sum  of  money  to  trustees,  to  be  laid  out  in  lands, 
which  were  to  be  settled  as  follows:  to  A  for  life  without  impeach- 
ment, &c.,  and  with  power  for  a  jointure;  then  to  trustees  to  pi'eserve, 
&c.,  remainder  to  the  heirs  of  the  body  of  A,  remainder  over.  Held, 
the  court  had  power  over  the  money  to  be  thus  laid  out,  and  that  the 
lands  should  be  limited  to  A  for  life,  remainder  to  trustees,  remainder 
to  his  first  and  every  other  son  in  tail  male,  remainder  over.(5) 

85.  Devise  of  money  and  stock,  the  latter  to  be  sold,  and  the  money 
laid  oat  in  purchasing  lands,  which  were  to  be  conveyed  to  A  for  life, 
after  liis  death  to  his  i.ssue,  and  for  want  of  such  issue  to  B.  On  a  bill 
b}'  A  for  a  conveyance,  decreed,  that  it  be  made  to  A  for  life,  remain- 


(1)  Roe?;.  Grew,  Wiliti.  272;    2  Wils.  322. 

(2)  Finlay  v.  Riddle,  3  Biiin.  139. 

{3)  Roberts  v.  Dixwell,  1  Aik.  607  ;  Leon- 


ard V.  Karl,  &c,  2  Verri.  526. 

(4)  Leonnrd  v.  Karl,  &c.,  2  Vern.  526. 

(5)  Papillou  V.  Voice,  2  P.  Wins.  47 L 


(a)  As  to  the  distinctioa  between  executory  and  executed  trusts,  see  p.  301. 


CHAP.  LVIII]  THE  RULK  IN  SHELLEY'S  CASK.  G55 

der  to  trustees  to  preserve,  &c.,  remainder  to  lii.s  first  and  otlier  sons  in 
tail  general,  remainder  to  his  daughters  in  tail  as  tenants  in  common, 
with  cross-remainders,  remainder  in  fee  to  B.(l) 

86.  Devise  to  trustees,  in  trust  to  convey  to  the  use  of  A  fci- life, 
without  impeachment,  &c.,  remainder  to  her  husband  B  for  life,  re- 
mainder to  her  issue,  remainders  over.  Decreed,  that'a'setllement  be 
made  to  A  for  life,  remainder  to  B  for  life,  remainder  to  tiuslees  to 
preserve,  &c.,  remainder  to  her  first  and  other  sons  in  tail. (2) 

87.  Devise  of  j)ersonal  estate  to  trustees,  to  be  laid  out  in  land, 
which  was  to  be  settled  and  assured  as  counsel  should  advise,  upon  said 
trustees,  in  trust  for  A  and  the  heirs  male  of  his  body,  to  taice  in  suc- 
cession antl  pTiority  of  birth  ;  in  default  of  such  issue,  then  in  trust  for 
B  in  the  same  manner.  The  net  proceeds  of  the  property,  bel'oi'c  the 
purchase,  to  be  paid  to  A  and  B  respectively,  and  their  respective  sons 
and  issue  male,  who  should  be  respectively  entitled  to  the  rents  of  the 
lands  when  purchased.  Held,  the  clause,  requiriu  gadvice  of  counsel, 
showed  an  intent  that  there  should  be  a  strict  settlement,  no  such  aid 
being  needed  for  an  estate  tail;  and  that  the  word  sons  in  the  subse- 
quent clause,  confirmed  this  construction.  Decreed,  that  the  land  be 
settled  on  A  for  lile,  remainder  to  his  first  and  other  sons  in  tail 
male.(8) 

88.  Where  the  devise  gives  only  a  trust  or  equitalile  estate  to  the 
first  taker,  and  a  legal  interest  to  his  heirs;  he  takes  only  a  life  estate.(-i) 
(See  supni,  sec.  14.) 

89.  Devise  to  trustees,  to  pay  debts,  &c.,  and  the  residue  into  the 
hands  of  A,  a  married  woman,  for  her  life;  then  to  stand  seized  to  ilie 
use  of  her  heirs,  severall}'  and  successively,  as  they  should  h^  in  priority 
of  birth,  &c.,  and  to  the  heirs  of  their  respective  bodies  in  tail  general. 
The  devise  to  A  being  of  a  trust,  and  that  to  her  heirs  of  an  executed 
use,  A  takes  only  a  lite  estate.(o) 

90.  It  remains  to  give  an  account  of  the  most  important  and  interest- 
ing decision,  in  Avhich  the  rule  in  Shdlty's  case  was  ever  brought  into 
question.  This  case  derives  peculiar  interest  and  value,  not  only  from 
the  elal)orate  discussion  to  wliich  it  led  in  regard  to  the  true  construc- 
tion and  application  of  the  rule  in  question,  and  the  general  rules  for 
construing  devises;  but  also  from  the  circumstance,  that  some  of  the 
ablest  of  English  judges  disagreed  in  opinion,  and  that  the  solitary 
judgment  of  Judge  Yates,  in  the  Court  of  King's  Bench,  was  afterwards 
almost  unanimously  sustained,  and  the  judgment  below  reversed,  in 
the  Exchequer  Chamber. 

91.  Devise  substantially  as  follows:  should  my  wife  hereafter  be 
enceinte  with  child,  if  it  be  a  female,  I  beqeath  to  her  £2,000,  to  be 
paid  whi.'n  she  comes  of  age,  or  is  married  ;  in  addition  thereto,  she  to 
be  educated  and  supported  till  the  portion  is  p.iyable.  If  a  male  child, 
I  give  and  bequeath  my  estate,  both  real  and  personal,  equally  to  be 
divided  between  said  infant  and  my  son  A,  when  said  infant  shall 
reach  the  age  of  twenty -one.     It  is  my  intent,  that  none  of  my  children 

(1)  .\slitOM  V.  Asliton.  1  Coll.  Jurid.  4  02.     I  (4)  Silve.ater  v.  Wilson,  2  T.  U.  444. 

(2)  Gleiiorcliy  v.  Bovilie,  Fur.  3;  I  Coll.  I  (5)  Say  v.  Joiie.s,  3  Bm.  Pari.  113,  8  Yin. 
Jurid.  405;  (Meure  v.  Meure,  2  Alk.  265 ;)  I  262;  Sliapliiiid  v.  Smilli,  1  Bro.  75;  Roy  v. 
Roberts  v.  Ki.Kwell,  1  Alk.  507.  Garaelt,  2  Wasii.  9. 

(3)  White  V.  Carter,  Amb.  670.  | 


656  THE  RULE  IN  SHELLEY'S  CASE.  [CHAP.  LVIH. 

shall  sell  and  dispose  of  my  estate  for  longer  term  than  his  life ;  and  to 
that  intent,  I  give,  &c,  all  the  rest,  &c.,  of  my  estate  to  A  and  the  said 
infant,  for  their  natural  lives,  remainder  to  B  and   his  heirs,  for   the 
lives  of  A  and  said  infant;  remainder  to  the  heirs  of  the  bodies  of  A 
and  the  said  infant,  &c. ;  remainder  to  my  daughters   for  their  lives, 
equally  to  be  divided;  remainder  to  B  and  his  heirs  for  the  lives  of 
my  daughters ;  remainder  to  the  heirs  of  the  bodies  of  my  daughters, 
equally  to  be  divided.     The  testator  died,  having  survived  B,  and 
leaving  A,  his  only  son  and  heir,  and  three  daughters.     The  wife  of 
the  testator  was  not  enceinte  at  his  death.     The  question  was,  whether 
A  took  an  estate  for  life,  or  in  tail.     Willes,  J.,  was  of  opinion  that  he 
was  but  tenant  for  life;   upon  the  grounds  of  an  intenlion^o  that  effect, 
api)earing  both  from  the  introductorj^  clause  of  the  will,  from  the  ap- 
pointment of  a  trustee  to  preserve,  &c.,  and  otherwise ;  and  that  the 
rule  in  Shelley's  case  was  pronounced  upon  a  deed,  and  in  argument^  and 
being  founded  on  obsolete  feudal  reasons,  must  not  be  extended  an  inch 
beyond   its  literal  application.     Aston,  J.,  was  of  the  same  opinion ; 
upon  the  grounds  that  the  rule  was  feudal,  and  to  be  construed  strictly, 
and  not  an  invariable  one ;  that  as  the  word  heirs  was  a  term  of  art, 
and  not  indispensable  in  a  devise  to  create  an  inheritance,  so,  also,  when 
used,  its  common  import  might  be  controlled  by  the  intent;  that  there 
was  no  distinction  in  this  respect  between  trusts  and  legal  estates;  that 
a  court  of  equity,  as  well  as  a  court  of  law,  would  construe  a  devise  to 
make  an  estate  tail,  in  the  absence  of  an  intention  to  the  contrary ;  and  that 
the  clause  prohibiting  the  first  devisees  from  alienation,  being  used  at 
the  beginning  of  the  Avill,  must  be  construed  not  as  a  restraint  upon  a 
tenant  in  tail,  but  as  explanatory  of  an  intent  to  give  an  estate  for  life. 
Lord   Mansfield   concurred.      He  remarked,  that  the  legal    intention, 
-when  clearly  explained,  must  control  the  legal  sense  of  a  term  of  art, 
unwarily  used  by  the  testator ;  that  the  rule  in  Shelley^s  case  was  not  a 
general  proposition  subject  to  no  control,  but  was  to  be  governed  by 
the  intention,  if  such  intention  Vvere  lawful,  if  not,  the  legal  import  of 
the  words  must  govern  ;  that  the  testiitor  evidently  had  a  strict  settle- 
ment in  his  eye,  and  the  heirs  of  A's  body  were  to  take  as  purchasers 
successively;  that  there  was  no  sound  distinction  between  the  devise 
of  a  legal  estate  and  a  trust,  and  between  a  trust  executed  and  execu- 
tory ;  that  all  trusts  were  executory,  and  in  every  shape  that  a  will 
appeared,  the  intention  must  govern.     He  agreed,  that  as  there  was  a 
devise  to  A  for  life,  and,  m  the  same  will,  a  devise  to  the  heirs  of  his 
body,  the  case  was  within  the  letter  of  Shelley^ s  case,  "and  he  did  not 
doubt  but  there  were  and  always  had  been  lawyers  of  a  different  bent 
of  genius,  and  different  course  of  education,  who  had  chosen  to  adhere 
to  the  strict  letter  of  the  law  ;  and  they  would  say  that  Shelleyh  case 
was  uncontrovertible   authority,  and  they   would   make  a  difference 
between  trusts  and  legal  estates,  to  the  harassing  of  a  suitor,"(«)    Yates, 
J.,  dissented.     He  remarked,  that  although  in  a  will  free  scope  must 
be  given  to  the  intention,  as  appearing  from  the  whole  scheme  and 
design  of  the  instrument ;  yei  it  must  be  clear  and  consistent  with 

(a)  This  last  remark  was  aimed  at  Judge  Tates.  who  dissented  from  the  other  judges, 
aud  who,  iu  consequence  of  the  sarcasm,  resigned  his  seat  upon  the  beuch. 


CnAP.  LYin.]  THE  RULE  IN  SHELLEY'S  CASE.  0o7 

every  rule  of  law  ;(«)  if  not  thus  consistent,  even  in  cases  of  trust,  there 
were  many  instances  where  the  intention  hud  been  disre/^rarded,  and  in 
sucli  case,  it  was  better  to  adhere  to  the  law  and  let  a  thousand  wills 
be  overthrown  ;  that  the  principle  of  giving  elfect  to  the  intention,  in 
whatever  words  expressed,  was  applicable  only  to  exeiiutory  trusts, 
but  in  this  case  no  future  conveyance  was  to  be  made,  but  everything 
was  fixed  by  the  will  itself;  that  to  require  the  intention  to  be  consist- 
ent with  the  rules  of  law,  was  as  necessary  to  the  safety  and  certainty 
of  property,  as  to  prohibit  a  testator  from  doing  what  was  illegal ;  that 
the  favor  shown  to  a  will  was  this — to  supply  barbarous  words,  and, 
if  the  devises  were  imperfect,  allow  a  necessary  implication,  but  if  the 
limitations  were  perfect,  no  assistance  was  needed,  and  the  words  must 
have  their  legal  effect;  that  technical  expressions  were  the  measures 
of  property  in  legal  devises,  and  the  determinate  meaning  affixed  to 
them  by  the  law  must  never  be  perverted  by  the  Judges  ;  that  the  rule 
in  Shellei/s  case  was  a  rule  of  construction  of  wills  as  well  as  deeds, 
well  established,  and  unalterable  but  by  Parliament,  and  in  itself  rea- 
sonable and  just,  though  the  original  reason  of  it  had  ceased;  that  the 
rule  did  not  speak  the  word  lieirs  abstractedly,  or  insinuate  that  there 
was  any  magic  in  this  word;  it  only  speaks  of  the  two  limitations,  to 
one  for  life,  to  his  heirs  the  inheritance ;  the  freehold  was  merged  in 
the  inheritance,  and  the  ancestor  took  the  whole  estate ;  that  the  ques- 
tion was  not  wluit  estate  the  ancestor  took,  but  what  estate  the  heirs 
took  ;  and  they  could  not  take  as  purchasers,  unless  j)articularly  de- 
signed ;  that  although  the  testator  intended  A  should  have  a  life  estate, 
he  also  intended  that  the  heirs  of  his  body  should  all  succeed,  which 
they  could  not  do  unless  he  was  tenant  in  tail ;  and  that  the  restriction 
upon  A's  power  to  convey  was  repugnant  to  the  estate  tail  devised  to 
him,  and  therefore  void,(l) 

92.  The  Court  of  King's  Bench,  therefore,  decided  that  A  took  a 
life  estate.  A  writ  of  error  was  brought  upon  this  judgment  in  the 
Exchequer  Chamber,  and  it  was  reversed  by  the  opinion  of  seven 
ju'lges  against  one.  Ilence,  it  appears,  that  eight  Judges  held  that  A 
took  an  estate  tail,  and  four  that  he  took  an  estate  for  life. 

98.  Upon  the  hearing  in  the  Exchequer  Chamber,  Sir  Wm.  Black- 
stone  was  one  of  the  judges  in  favor  of  reversing  the  Judgment 
below  ;  and  his  argument,  published  from  his  own  manuscript  by 
Mr.  Hargrave,  presents  perhaps  the  most  luminous  view  of  the  rule 
in  Shelley's  case,  its  nature,  apphcations  and  modifications,  to  be  found 
in  the  books.     The  following  is  a  concise  abstract  of  it. (2) 

9-i.  Some  rules  of  law  are  essenti;il.  permanent  and  substantial,  and 
to  be  regarded  as  indelible  landmarks  of  property.  These  are  beyond 
the  control  of  any  intention  on  the  part  of  a  testator.  Such  is  the 
rule,  that  the  owner  of  the  inheritance  has  power  to  alienate.  There 
are  other  rules,  of  a  more  arbitrary,  technical  and  artificial  ki..d, 
founded  on  no  great  principle  of  legislation  or  national  policy.     These 

(1)  Perrin  v.  Blake,  1  Col.  Jurid.  283.  |       (2)   1  Hnrg.  Tra.  487. 

(a)  Thus,  where  one  devised  an  estate  to  his  children  and  the  heirs  of  iheir  bodies  reapeot- 
ivclj'  torever,  and  none  other ;  lieUi,  tlie  l;ist  words  were  void,  as  crejiliiiK  a  perpetuity,  and 
the  cinldren  look  an  estnte  tail,  lliou^rh  the  tesUitor  wrongly  supposed  it  would  be  inalien- 
able.    Adams  V.  Cruft,  U  Pick.  23-4. 

Vol.  I.  42 


658  THE  RULE  IN  SHELLEY'S  CASE.  [CHAP.  LVIIL 

are  rules  of  interpretation  and  evidence ;  by  wliich  the  law  attaches  a 
certain  meaning  to  particular  expressions,  and  supposes  that  a  party 
who  uses  them  intends  to  convey  such  meaning.  Such  are  the  rules 
b}^  which  certain  words  create  respectively  estates  in  fee,  in  tail,  and 
for  life. 

Another  class  of  rules,  are  in  themselves  mere  maxims  of  positive 
law,  but  deduced  by  legal  reasoning  from  some  great  fundamental 
principles ;  and  of  this  kind  is  the  rule  in  Shelley's  case.  Such  being 
the  nature  of  the  rule,  it  is  flexible,  subject  to  exceptions,  and  liable 
to  be  controlled  by  the  intention  of  a  testator.  But  this  intention  must 
be  consistent  with  the  great  and  immediate  principles  of  legal  policy, 
and  also  so  plainly  expressed,  or  to  be  collected  from  the  will  by  such 
cogent  and  demonstrative  arguments,  as  to  admit  of  no  reasonable 
doubt.  In  the  present  case,  there  is  no  doubt  the  testator  intended  to 
give  a  life  estate  to  A ;  nor  can  there  be  a  doubt  of  such  intention  in 
any  case  where  a  life  estate  is  expressly  devised. (a)  But  the  question 
is,  what  estate  he  meant  to  give  to  the"  heirs  of  A,  and  in  what  way  ? 
If  he  had  no  intention  upon  this  point,  the  general  rule  of  law  must 
prevail,  and  they  must  take  by  descent.  They  cannot  take  as  pur- 
chasers, unless  it  is  affirmatively  shown  that  he  so  intended.  And  this 
must  appear  from  one  of  four  circumstances :  1.  Where  the  ancestor 
takes  no  estate,  or  an  interest  less  than  freehold.  2.  Where  no  estate 
of  inheritance  is  given  to  the  heir.  3.  Where  explanatory  words  are 
added  to  the  term  heirs^  indicating  a  consciousness  of  having  used  it 
improperly,  and  a  desire  to  qualify  its  meaning.  4.  Where  other  limi- 
tations of  inheritance  are  added  to  this  word,  wit\i  the  purpose  of  con- 
stituting a  new  root  of  descent,  independent  of  the  first  devisee.  The 
two  circumstances  in  this  case,  favoring  the  construction  of  a  life 
estate,  are  these.  1.  The  interposition  of  an  estate  to  trustees.  But  it 
does  not  appear  that  they  were  trustees  to  preserve,  &c.,  and,  even  if 
they  were,  according  to  previous  cases,  it  would  make  no  difference. 
2.  The  restriction  upon  A's  power  of  disposition.  But  this  is  not  to 
control  the  limitation  of  an  estate  to  which  it  is  repugnant,  but  mer<-ly 
indicates  a  mistaken  opinion  on  the  part  of  the  testator,  that  under  the 
circumstances  A  had  no  power  to  convey  the  estate,  and  an  intention 
to  affirm  this  legal  construction.  But  the  restriction  does  not  indicate 
any  intention,  that,  in  order  to  effect  his  object,  the  heirs  should  take 
by  purchase.(/>) 

95.  The  rule  in  Shelley's  case  is  undoubtedly  in  f  )rce  in  this  country, 
as  a  settled  principle  of  the  English  law  ;  except  where  it  has  been 
changed  by  express  statutes.(c)     In  Connecticut,  Michigan,  New  York, 

(a)  "  That  the  testator  intended  to  devise  a  life  estate  to  J,  could  not  be  made  more 
manifest  than  from  the  will  itself  if  confirmed  by  one  from  the  dead,  even  if  that  were  the 
testator  himself."  But  a  subsequent  intention  to  provide  for  all  J's  male  issue  was  iield  to 
be  the  more  important  intent,  and  therefore  controlled  the  construction  of  the  will.  Roy  v. 
Garnett,  2  Wash.  31. 

(&)  See  further,  as  to  Shellov's  case,  6  Cruise,  283  ;  Fearne,  192-6 ;  Hickman  v.  Quinn, 
6  Yerg.  96;  Polk  v.  Paris,  9  Yerjr.  209;  Payne  v.  Sale,  3  Bat.  455  ;  Swain  v.  Roscoe,  3 
Ired  200;   McFeely  v.  Moore,  5  Ham   465;  Sehoonmaker  v.  Slieely,  3  Edw.  1. 

(c)  In  Knjiland,  it  has  been  recently  abnig^ited  by  act  of  Parliament.  St.  3  &  4  "Wra.  IV, 
provides,  that  a  devise  to  the  heir  8h;dl  pass  the  estate  to  him  as  devisee,  not  by  descent; 
and  that  a  limitation  by  deed  to  the  grantor  or  his  heirs  shall  create  a  new  estate  by  pur- 
chase; and  where  one  takes  by  purchase  or  will,  under  a  limitation  to  the  htirs  or  heirs  of 
the  body  of  the  ancestor,  the  descent  is  to  be  traced,  as  if  such  ancestor  had  beea  the  pur- 
chaser.    4  Kent,  228,  n. 


CHAP.  LYIIL]  THE  RULE  IN  SHELLEY'S  CASE.  659 

and  Ohio,  and  probably  other  States,  the  rule  is  abolished  by  statute. 
In  New  Jersey  it  is  provided,  that  wheie  there  is  a  devise  to  one  for 
life,  remainder  to  his  heirs,  issue,  or  the  heirs  ol' his  body,  the  life  estate 
is  good,  but,  afier  his  death,  the  estate  [)assi's  to  his  ehildren  of  heirs. (a) 
In  Maine  and  Mi.'^souri,  a  devise,  and  in  Maine  a  deed,  fo'one  Ibr  life, 
then  to  his  children  or  heirs  or  right  heirs  in  lee,  pa>ses  a  life  estate  to 
the  former,  and  a  remainder  in  lee  to  the  hvtter.  In  Rhode  Ishmd,  the 
same  construction  is  given  to  a  devise  for  life,  remainder  to  the  children 
or  issue  in  fee-simple.  In  New  Hampshire,  an  express  particular  estate 
created  by  devise,  is  not  enlarged  by  a  subsequent  devise  to  heirs  or  is- 
sue. In  Massachusetts,  a  conveyance  or  devise  to  one  for  life,  and  after 
his  death  to  his  heirs  in  fee,  or  by  words  ^o  that  effect,  gives  him  a  life 
estate,  and  a  remainder  in  ice  to  his  heirs.(l)(/^) 

(1)  Bishop  u.  Selleck,  1  D.1J',  299;  M-Gram    St.  725;    Conn.    St.  348;  1  N.  J.  L.  774; 
v.  Davenport,  6  Por.  319;  Brant  i;.  Gelston,  2  !  Misso.  St.   620;  Swan,   999;  Midi.    Hev.   St. 


John.  Gas.  384-;  Kiiigsland  v.  Rapelye,  4 
Kent,  231;  5  Conn.  100;  1  Smith,  152;  R. 
L  L.  216;  Mass.  Rev.  St.  405 ;   1  N.  Y.  Rev. 


25S;  N.  H.  Rev.  St.  311  ;  Me.  Rev.  St  372. 
See  Sheely  v.  Schoonmaker,  3  Deuio,  485  ; 
Dunn  V.  Davis,  12  Ala.  135, 


(a)  The  rule  in  Shelley's  case  is  abolished  as  to  devises.  Den  v.  Demarest,  1  N.  J.  525. 
See  Demarest  v.  Halfer,  2  lb.  599. 

(6)  Devise  of  the  improvement  of  a  farm,  with  a  personal  charge  upon  the  devisee,  and  at 
her  death,  to  be  equally  divided  among  all  her  legal  heirs.  The  devisee  takes  only  a  life  es- 
tate, and  her  children,  living  at  the  testator's  death,  a  remainder  in  foe.  Bowers  v.  Porter, 
4  Pick  198. 

The  statute  seems  not  to  apply,  where  a  life  estate  can  arise,  if  at  all,  only  iy  implication. 
Adams  v.  Cruft,  14  Pick.  25.     (See  Rogers  v.  Rogers,  3  Wend.  503.) 

Devise  to  the  testator's  son,  of  the  rent  or  improvement  of  certain  real  estate,  the  devisee 
"to  receive  the  rent  annually  or  quarterly,  (if  the  same  should  be  leased  or  let,)  during  his 
natural  life,  and  the  premises  to  descend  to  his  heirs."  By  a  codicil,  the  testator  repealed 
and  revoked  that  part  of  his  will  wherein  any  pMrt  of  his  estate,  real  or  personal,  wasdc-vised 
or  bequeathed  to  his  son,  and  in  lieu  thereof  made  the  following  bequest :  ''  I  do  bequeath 
to  ray  son  only  the  income,  interest  or  rent,  of  any  portion  of  my  real  or  personal  estate,  as 
the  case  mar  be,  so  that  no  more  than  the  income,  interest  or  rent  of  any  portion  of  my  real 
or  personal  estate,  and  not  liie  principal  of  said  per.sonal,  or  Re  of  .said  real  estate,  maycome 
to  the  said,  &c.,  my  son,  which  at  his  decease  it  is  my  will,  that  the  said  real  and  personal 
estate  siiall  then  vo  to  the  legal  heirs."  It  was  held,  that  by  the  terms  of  the  will  alone,  the 
estate  therein  mentioned  would  have  been  devised  in  lee  to  S,  and  his  heirs,  cither  as  a  fee 
simple  in  him,  according  to  the  rule  in  Shelley's  case,  or  as  an  estate  (or  life  in  .S,  with  re- 
mainder in  (ee  to  his  heirs,  according  to  the  rule  as  modified  in  M^issacliusetts  by  Sl  1791, 
c.  60,  sec.  3  :  but  that  by  the  codicil,  the  devise  in  the  will  to  S,  whether  of  a  fee-simple,  or 
of  an  estate  for  life,  with  remainder  in  fee  to  his  heirs,  was  wholly  revoked,  and  an  estate 
thereby  devised  to  him  forlifL-,  with  vested  remainder  in  fee  to  the  legal  heirs  of  the  testa- 
tor.    Brown  v.  Lawrence,  3  Cush.  390. 

In  Pennsvl  vania,  the  following  recent  ca.ses  have  occurred :  Devise — "  I  give  unto  my  son  M, 
all  that  messuage,  to  hold  to  him  for  and  during  liis  natural  life,  and  afcer  his  decease  to  the  heirs 
of  his  bod}',  lawfully  begotten,  and  to  their  heirs  forever;  and,  in  default  of  such  issue,  then 
to  the  heirs  of  my  son  S,  and  their  heirs  forever."  Held,  M  took  an  estate  tail  under  the 
rule  in  Shelley's  case.     George  v  Morgan,  4  Harris.  95  :  Worrall  v.  Morgan.     lb. 

A  testator  devised  to  his  wife  the  use  and  income  of  a  plantation,  for  her  support  and 
maintenance  during  her  life,  and  to  his  youmrest  .son  A,  the  whole  of  the  plantation,  and  also 
a  piece  of  wood  land,  after  the  decease  of  liis  wife.  If  A  was  a  minor  at  the  lime  of  his 
wife's  death,  he  desired  his  executors  to  lease  the  plantation  until  he  became  of  age.  If  A 
died  under  tiie  age  of  twenty-one  year."*,  and  without  lawful  heirs,  then  the  plantation  was 
to  be  sold  by  the  executors,  providing  it  was  alter  the  decease  of  his  wife,  and  the  whole  of 
the  proceeds  to  be  divided  equally  among  the  lawful  heirs,  his  son  B,  and  his  dau>:liters  C 
and  D ;  provided,  always,  that  if  A  survived  and  •'  begets  lawful  heir.s,"  then  after  his  de- 
cease, the  proceeds  of  said  plantation  were  to  be  equally  divided,  share  and  share  alike,  to 
the  heirs  of  h..  A  made  a  conveyance  to  bar  the  entail,  and  tendered  a  deed  in  fee-8ira|)!e  to 
the  purclia-ser.  The  court  considered  the  estate  which  A  derived  under  the  will,  as  an  estate 
tail,  but  belli,  that,  whatever  the  estate  might  be,  A  had  such  an  estate  as  the  purchaser  was 
compellable  to  take.     Maurer  v.  Marshall,  4  Harris,  377. 


660 


JOINT  TENANCY,  ETC.,  HOW  CREATED. 


[CHAP.  LIX. 


CHAPTER   LIX. 


JOINT  TENANCY,  ETC.,  HOW  CREATED. 


2.  Joint  tenancy,  &c.,  by  deed. 

8.  Rule  in  United  States. 

11.  Trust,  liow  creRted  by  deed. 

13.  C7vss-re'mainders  hv  deed. 


24    Joint  tenancy,  &e..  by  devise. 
36.    Cross-re7naindtrs  by  devise. 
53.  Condition,  <tc.,  by  devise. 


1.  With  respect  to  the  words  necessary  to  create  an  estate  for  life, 
for  years,  or  at  will,  nothing  requires  to  be  said  in  addition  to  the  ob- 
servations heretofore  made  in  connection  with  these  several  estates. 

2.  It  has  been  seen,  (ch.  54,)  that  in  England,  a  conveyance  to 
several  persons,  generally,  creates  a  joint  tenancy  ;  while  in  the  United 
States,  on  the  contrary,  such  conveyance  creates  a  tenancy  in  common. 
In  England,  upon  the  same  principle,  where  one  clause  of  the  deed  im- 
ports a  tenancy  in  common,  and  another  a  joint  tenancy,  the  latter  clause 
will  prevail.  And  this  construction  is  adopted  even  in  marriage  arti- 
cles, where  the  iydent  is  peculiarly  regarded. 

3.  Conveyance  to  trustees,  upon  trust  that  A  and  B  might  equally 
divide  the  rents  and  profits  between  them  ;  and  the  whole  to  the  sur- 
vivor.    Held,  a  joint  tenancy.(l) 

4.  A  marriage  settlement  in  trust,  after  limitations  to  the  husband 

(1)  Clerk  V.  Clerk,  2  Tern.  323  ;  Ward  v.  Everett,  1  Ld.  Ray.  422. 


In  Kentucky,  it  is  held,  that  the  words.  "  heirs  of  the  body,"  in  wills  are  usually  to  be 
construed  as  words  o? purchase,  and  not  of  limitation.     Prescolt  v.  Prescott,  10  B.  Mon.  56. 

Thus,  even  in  a  deed,  where  the  intention  clearly  appeared  to  be,  to  give  a  present  inter- 
est to  the  children ;  tills  rule  was  adopted.     Jarvis  v.  Qulgley,  lOB.  Mon.  104. 

In  North  Carolina,  A  devised  to  his  son  a  tract  of  land,  "  for  and  during  his  natural  life," 
and  after  his  death,  "to  tlie  heirs  of  liis  body  to  be  equally  divided  between  them,  to  them 
and  their  iieirs  forever,"  and,  it  lie  died  without  heirs  of  his  bodj^,  livlnp  at  the  time  of  his 
deaih.  then  to  his  daughter.  Held,  the  son  took  only  a  life  estate.  Moore  v.  Parker,  12 
Ired.  123. 

VViiere  a  devl.se  made  in  North  Carolina,  since  the  act  of  1784.  (Rev.  Sts.  c.  122,  sec.  10, 
and  c.  93,  sec.  1,)  was  to  A  for  life,  and,  should  he  have  lawful  Issue,  then  to  be  equally  di- 
vided between  his  lawful  issue,  but  should  he  not  have  lawful  issue,  then  over;  held,  A 
took  only  a  life  estate.    Ward  v.  Jones,  5  Ired.  Eq.  400. 

The  rule  In  Shelley's  case  is  in  force  in  Georgia,  but  the  courts  favor  the  intention  of  the 
testator,  and  take  hold  ot  anj  words  which  tend  to  explain  or  quality  the  teclinical  terms, 
that  would,  by  that  rule,  otherwise  create  an  estate  in  fee  or  in  tall.  Dudley  v.  Mallery, 
Mallery  v.  Dudley,  4  Geo.  52. 

A  conveyance  was  made  to  A,  during  the  life  of  her  husband  B,  and,  after  her  death,  to 
the  children  of  A,  who  should  then  be  living,  "  and  if  it  should  happen,  that  the  said  ,'\  should 
depart  this  life  leaving  no  child  or  children  by  her  said  husband,  then  in  trust  lor  the  main- 
tenance and  support  of  tlie  said  B  and  his  children."  B  died  betore  his  wile.  Held,  the  fee 
never  vested  in  B.     lb 

Devise  of  .slaves:  "  I  lend  to  B  certain  property  during  her  natural  life,  and  after  her  de- 
cease to  return  to  the  heirs  of  her  body,  share  and  share  aiiout."  Held,  tliese  words  created 
an  estate  tail  under  the  laws  of  South  Carolina,  and  B  took  absolutely.  Walts  v.  Ciardy,  2 
Florida,  369. 

In  New  Jersey,  A  gave  to  B  and  her  heirs,  forever,  all  the  residue  of  his  real  and  personal 
estate,  l>ut,  if  B  died.  "  withuut  leaving  lawlul  issue."  then  to  ("  and  D,  as  tenants  in  com- 
mo  '.  Held,  the  limitation  over  wasujion  an  Indefinite  failure  of  issue,  and  failed  as  an  exe- 
cutory devi.se  ;  that  B.  therefore,  under  the  statute  c/e  douis  took  an  estate  tail,  and,  in  New 
Jersev.  an  estate  for  life,  with  remainder  to  her  children.  Morehouse  v.  Cotiieal,  2  New 
Jer.  430. 


CHAP.  LIX.]  JOINT  TE^fANCY,  ETC,  HOW  CREATED.  6(jl 

and  wife,  directed  the  trustees  to  permit  all  and  everi/ihc  child  and  chil- 
dren of  the  body  of  the  husband  by  the  wife,  to  take  the  rents  to  them 
and  their  heirs,  in  such  shares  and  proportions  as  the  husband  shouki 
appoint;  and  for  want  thereof  to  receive  them  to  them  and  their  h<'irs 
forever.  Held,  the  cliildren,  who  survived  their  jiarents,  took  as  joint 
tenants;  that  the  word  ertr// had  no  contrary  imporXj^being  always 
used  in  creating  a  joint  tenancy  ;  and  although,  under  the  first  cUause, 
if  the  husband  had  made  an  appointment,  it  would  have  created  a  ten- 
ancy in  common,  yet,  in  default  of  such  appointment,  the  parties  took 
as  joint  tenants  under  the  general  words  of  the  subsequent  clause.(l) 

5.  x\  conveyance  to  A  and  13,  to  have  and  to  hohl  to  tliem,  scilicet  the 
one  moiety  to  A  and  to  his  heirs,  and  the  other  to  B  and  his  heirs,  makes 
a  tenancy  in  common.  A  and  B  take  several  freeliolds,  and,  tis  Lord 
Coke  says,  an  occupation  j^ro  indiviso,  by  virtue  of  the  Jiahendum,  which, 
being  express,  controls  the  implied  interest  given  by  the  premises.(2) 

6.  A  conveyance  to  two  persons,  equally  to  he  divided,  their  heirs,  &c., 
creates  an  inheritance  in  common.  It  was  formerly  held,  that  the 
words  equally  divided  shouhl  be  thus  construed,  but  not  the  words  to  he 
divided.  But  the  distinction  no  longer  exists.  This  construction  is 
more  especially  adopted,  where  the  estate  conveyed  is  a  term  for  years, 
limited  in  trust  for  children  ;  where  an  intention  appears  to  make  dis- 
tinct provisions  for  them,  and  a  pecuniary  payment  is  charged  upon 
the  land,  making  them  purchasers.(8) 

7.  It  is  said,  there  are  no  precise  words  necessary  to  create  a  tenancy 
in  common.  The  words  equally  to  he  divided  go  to  the  quality  and  not 
to  the  limitation  of  the  estate.  They  are  words  o^  qualification  and  cor- 
rection.{■i){a) 

8.  It  is  held  in  Massachusetts,  that  a  grant  to  two  persons  "jointly, 
equally  to  be  divided,"  creates  a  tenancy  in  common  under  the  statute 
of  that  State,  if  not  at  common  law.  So  a  conveyance  to  two  persons 
jointly  and  severally.  So  a  conveyance  of  a  moiety  in  quantity  and 
quality  makes  a  tenancy  in  common  between  grantor  and  grantee.(5) 
So,  in  Kentucky,  a  deed  of  land  to  two  persons,  by  one  common  bound- 
ary, but  stating  the  particular  interest  conveyed  to  each,  constitutes 
them  tenants  in  common. (6) 

9.  In  Pennsylvania,  independently  of  statutory  provisions,  it  seems, 
a  deed  to  A  and  B,  their  heirs  and  assigns,  hahendum  to  them,  tlieir 
heirs,  &c.,  and  to  the  heirs,  &c.,  of  the  survivor,  creates  a  joint  tenancy. 
But  where  the  premises  convey  to  them  or  any  of  them,  their  or  any 


(1)  Stratton  v.  Best,  2  Bro.  233 ;  (Staples 
V.  Maurice,  4  Bro.  Pari.  Cas.  580 )  See  HoUi- 
dny  V   Overton,  10  Va\^.  L.  &  Kqu.  175. 

(2)  Lit.  298  ;  Fislier  v.  Wigg,  1  P.  Wms. 
18. 

(3)  2  Vent.  365;  TTawell  v.  Hunt,  Pree.  in 
Chan.  164;  Ridden  v.  VMllier,  2  Vea.  252; 
Goodtitle  V.  Stok-es,  1  Wils.  341  ;  Den  v. 
Gaskin,  Cowp.  660 ;   Evans  v.   Biittain,  3   S 


113;  2  J.  J.   Mar.  382;  3  Men.  380;  Bow- 
linfr  V.  Dohyn,  5  Dana.  438. 

(4)  Rigden  v.  Yallicr,  2  Ves>.  252;  Fisher 
V.  WigK.  1  P.  Wms.  14;  Fisher  i».  W;iggs.  12 
Mod.  298;  I  Ahr.  Eq.  291  ;  Jackson  v.  Lu- 
quere,  6  Cow   228;  (3  S.  &  R.  393.) 

(5)  Burphardt  v.  Turner,  12  Pick.  534; 
^[me^  V.  Miller,  16  Muss.  59;  Adams  v. 
Froihingham,  3  Mass.  352. 


&  R.  138;  Larsb  v.  Larsh,  Addi.  310 ;  2  Lit.  '      (6)  Craig  v.  Taylor,  6  B.  Mod.  457. 


(o)  Although  the  weight  of  authority  is  in  favor  of  the  rule  ahove  stated,  it  is  proper  to 
notice,  that  in  Fisher  v.  Wigg.  1  P.  Wms.  14,  Lord  Holt  dissented  from  the  opinion  of  the 
court,  maintaining  that  the  words  equally  to  be  divided  signify  no  more  than  the  law  would 
imply  without  them. 


662 


JOINT  TENANCY,  ETC.,  HOW  CREATED. 


[CHAP.  LIX. 


of  their  heirs  or  assigns,  hahendwn  to  them,  their  heirs  and  assigns,  &c., 
this  is  a  tenancy  in  common.(l)  So,  by  a  conveyance  to  "A,  in  trust 
for  herself  and  her  children,  fo  have  and  to  hold  for  herself  and  her 
children,  their  heirs  and  assigns;"  A  and  her  childi^en  become  tenants 
in  common  in  fee  in  equal  shares.(2) 

10.  In  Kentucky,  a  deed  to  two  persons  and  the  survivor  of  them, 
his  heirs,  &c.,  passes  a  life  estate  to  them,  and  a  contingent  remainder 
in  fee  to  the  survivor.(3)(a) 

11.  No  particular  form  of  words  is  required  to  create  a  trust,  if  the 
intention  appear.  Either  a  trustee  or  cestuiy^iW  take  a  lee-simple,  with- 
out using  the  word  heirs^  when  the  purposes  of  the  trust  so  require. 

12.  A,  a  revolutionary  soldier,  delivers  his  discharge,  which  entitled 
him  to  bount}^  land,  to  B,  with  this  certificate  under  hand  and  seal: 
"  This  is  to  certit}^,  that  B,  the  bearer,  is  entitled  to  all  the  lands  that  I 
am  entitled  to,  &;c.,  for  my  services  certified  in  my  discharge."  The 
usual  consideration  of  $15  was  paid  by  B.  B  transfers  his  right,  and 
his  assignees  afterwards  take  out  a  patent  for  the  land  in  A's  name, 
the  law  so  requiring.  Afterwards  C,  knowing  the  transfer  to  B,  pur- 
chases from  A  for  $250.  Held,  no  consideration,  or  words  of  inheri- 
tance, were  requisite  to  pass  A's  title;  and  he  took  the  land  as  B's 
trustee,  especially  as  an  act  sanctioned  all  transfers  previously  made 
by  soldiers.(4)(Z/) 

18.  Where  a  particular  estate  is  conveyed  to  several  persons,  in  com- 
mon, and,  upon  the  termination  of  the  interest  of  either  of  them,  his 
share  is  to  remain  over  to  the  rest,  and  the  remainder-man  or  rever- 
sioner is  not  to  take  till  the  termination  of  all  the  estates ;  the  parties 
take  as  tenants  in  common,  with  cross-remainders  between  them.(5)(c) 

14.  No  technical  words  in  a  deed  are  necessary  to  create  cross- 
remainders.  Any  words  which  express  the  intention  of  the  parties 
will  be  sufficient.  And  it  is  sufficient  to  say  that  there  shall  be  cross- 
remainders,  without  the  artificial  language  commonly  used  for  the 
purpose. 

15.  But  cross-remainders  cannot  be  implied,  even  in  a  deed  to  uses. 
Thus  an  inheritance  will  not  pass  in  this  mode,  without  the  use  of  the 
word  heirs.(6) 

16.  It  is  said  that  cross- remainders  are  created  by  deed  as  to  accruing 
shares,  by  a  limitation  of  the  whole  estate  to  the  ovAy  surviving  child  and 
his  issue,  or  a  gift  over  of  the  entire  remainder,  after  failure  of  all  the 

(1)  Sliirlock  V.  Sliirlock,  5  Barr,  367. 

(2)  Davidson  v.   Heydon,  2  Yeates,  459; 
Galhraith  v.  Galbraith,  3  S.  &  R.  392. 

(3j  Ewing  V.  Savary,  3  Bibb,  237. 


(4)  Fisher?;.  Fields,  10  Johns.  505. 

(5)  4  Cruise.  249. 

(6)  Doe  V.  Wainewriglit,  5  T.  R.  427. 


(a)  Devise  to  A,  the  testators  wife,  in  common  with  B.  his  daup:hter,  of  the  use  of  certain 
rooiiiia,  and  to  B  in  common  with  A  of  the  same  rooms,  wliile  B  siiould  remain  unmarried. 
Held,  after  A's  death,  B,  not  being  married,  was  entitled  to  the  sole  use  of  the  rooms, 
Jarvis  v.  Buttrick,  1  Met.  480. 

(h)  Mere  words  of  reeommoiidation  to  a  devisee,  to  give  the  devised  estate  to  the  testator's 
children,  at  such  time  and  in  hucIi  manner  as  the  devisee  shall  think  best,  do  not  create  a 
trust.     Gilbert  v.  Chapin,  19  Conn.  342. 

(c)  The  distinction  is  not  very  obvious,  between  a  tenancy  in  common  with  cross-remain- 
ders and  a  joint  ten-^ncy;  so  far  as  the  interest  of  the  tenants  themselves  is  concerned. 
The  former,  however,  always  implies  a  remain<ler  subsequent  to  the  tenancy  in  common,  to 
take  effect  after  the  termination  of  the  estates  of  all  the  tenants  in  common;  while  the  latter 
may  be  in  fee-simple. 


CHAP.  LIX.]  JOINT  TENANCY,  ETC.,  HOW  CHEATED.  663 

issue,  or  an  express  creation  ol"  cross-remuinders  a.s  to  the   original 
shares.(i) 

17.  Conveyance  to  the  use  of  A  and  B,  and  the  heirs  male  of  their 
bodies;  and,  for  default  of  such  issue  of  either  of  them,  to  the  use  of 
the  survivor  of  them,  having  issue  male,  and  to  the  issue  male  of  such 
issue  male;  and,  for  default  of  issue  male  of  their  bSiTies,  remainder 
over.  Held,  A  and  B  took  several  inheritances,  and  there  was  no 
cross-remainder  in  tail  for  want  of  the  word  heiri>.{2) 

18.  Where  one  covenants  to  stand  seized  to  the  use  of  A  and  B,  and 
the  heirs  of  their  bodies,  of  a  part  of  bis  land,  and,  if  they  die  with- 
out issue,  then  to  remain,  &c.,  and  of  another  part  to  the  use  of  C,  D 
and  E,  and  the  heirs  of  their  bodies ;  and,  if  they  die  without  issue, 
then  to  remain,  &c,  ;  no  cross-remainders  arise  by  implication.(3) 

19.  Conveyance,  upon  the  marriage  of  A,  the  son  of  the  grantor, 
(after  previous  limitations,)  to  the  use  of  such  child  or  children  of  A, 
and  ill  such  shares,  &c.,  as  A  should  appoint;  and,  in  default  of  ap- 
pointment, to  the  use  of  all  and  every  the  children  of  A,  and  the  heirs 
of  their  several  and  respective  bodies,  as  tenants  in  common  ;  but,  if 
only  one  child,  to  the  use  of  such  child  and  the  heirs  of  his  or  her 
body  ;  and  in  default  of  all  such  issue,  to  the  right  heirs  of  the  grantor 
forever.  A  had  two  children  at  the  time,  and  afterwards  had  others, 
and  died  without  making  an  appointment.  Held,  notwithstanding  the 
power,  A's  children  took  vested  estates  tail;  that  there  were  no  cross- 
remainders  between  them,  but,  on  the  death  of  each  child  without  is- 
sue, his  share  fell  into  the  reversion. (4) 

20.  Limitation  by  marriage  settlement,  to  the  use  of  all  and  every 
the  daughu-r  and  daughters  of  the  marriage,  share  and  share  alike, 
equally  to  be  divided  between  them  ;  and  of  the  heirs  of  the  body  and 
bodies  of  all  and  every  such  daughter  and  daughters  lawfully  issuing; 
and,  fir  default  of  such  issue,  to  the  use  of  the  right  heirs  of  the  hus- 
band. Held,  although  the  intent  of  the  deed  probably  was,  that  the 
remainder  over  should  not  take  effect,  while  any  issue  of  the  marriage  re- 
mained ;  yet  such  construction  could  not  be  im.plied^  and  there  could  be 
no  cross-remainders  between  the  daughters  and  their  issue.(o) 

21.  Conveyance  to  the  use  of  the  future  children  of  A,  as  tenants  in 
common,  and  the  heirs  of  their  several  bodies  issuing.  And,  if  any 
such  child  or  children  should  die  without  issue,  his,  her,  or  their  parts 
to  remain  to  the  use  of  the  surviving  child  or  children  of  A,  and  the 
heirs  of  his,  her,  or  their  respective  bodies,  and  so,  tolies  quolies,  as  any 
of  the  said  children  should  die  without  issue,  till  there  should  be 
only  one  child  left;  and  if  all  the  children  should  die  without  issue,  or, 
if  A  should  have  no  issue,  then  to  B  in  fee.  Held,  the  meaning  of  the 
word  surviving,  in  its  connection,  was,  that  on  the  death  of  one  child 
without  issue,  his  share  should  go  to  the  surviving  line  of  heirs,  either 
the  surviving  children,  or,  if  dead,  to  their  issues;  and  not  wholly  to 
one  surviving  child.     And  this  construction  was  confirmed  by  the  limi- 

(1)  Edwards  v.  Alliston,  4  Riiss.  78.  i      (3)  Doe  v.  Dorvell,  5  T.  R.  513. 

(2)  Nevell  v.  Nevell,  1  Rolle'a  Alir.  837,  R.        (4)  Col.?i;  Levin!;ston,  1  Vent.  224. 
pi.  2 ;  Cook  V.  Gerrard,  1  Saun.  185,  n.  6.*     I      (5)  Doe  v.  Worslcy,  I  E.  416. 

*  In  this  note,  it  is  said,  all  the  cases  on  the  subject  are  collected  with  great  ability  ;  per 
Lord  Keuyou,  Doe  v.  Worsley,  1  E.  416, 


g(34  JOINT  TENANCY,  ETC.,  HOW  CREATED.  [CHAP.  LIX. 

tation  of  a  remainder  over  in  fee,  on  the  death  o^  all  the  children  with- 
out issue  :  showing  that  the  cross-remainders  were  to  continue  so  long 
as  the  lives  of  children  lasted.  Hence,  the  deed  created  cross-remainders 
among  A's  children  :  and  the  share  of  one  deceased  vested  in  a  survi- 
ving child,  and  the  heir  of  another  deceased. (1) 

22.  Conveyance  hy  marriage  settlement  to  trustees,  remainder  to 
children  as  tenants  in  common ;  for  default  of  such  issue,  and  if  any 
of  said  children,  there  being  more  than  one,  should  die  under  twenty- 
one,  without  issue,  the  share  of  such  child  to  go  to  the  survivors  as 
tenants  in  common  ;  if  all  such  children  should  die  without  issue,  to 
the  use  of  the  settler  in  fee.  Held,  no  cross-remainders  were  created 
between  the  children,  except  in  the  case  that  one  should  die  without 
issue,  and  under  twenty-one.(2) 

23.  In  marriage  articles,  which  are  construed  less  strictly  than  deeds, 
cross-remainders  may  sometimes  arise  by  impUcation.(8) 

24.  In  England,  a  devise  to  two  or  more  persons,  generally,  or  to 
-them  and  their  heirs,  makes  them  joint  tenants  for  life  or  in  fee  ;  even 
though  the  estates  are  to  have  different  commencements.  So,  where 
the  right  of  survivorship  is  given,  the  estate  is  a  joint  tenancy,  even 
though  there  are  other  words  indicating  a  tenancy  in  common  ;  as,  for 
instance,  w^here  the  devise  is  to  A,  B  and  C  in  tail,  every  of  them 
to  be  the  other's  heir  by  equal  portions.  So  a  devise  to  two,  equally  to 
be  divided  between  them,  and  to  the  survivor  of  them,  or  words  of 
equivalent  import,  make  a  joint  tenancy.  Where  there  are  two  differ- 
ent dispositions  of  the  same  property  in  a  will,  it  is  said,  if  the  two  es- 
tates have  the  unity  or  sameness  of  interest  essential  to  a  joint  tenancy, 
the  tievisees  shall  be  joint  tenants — otherwise,  they  are  tenants  in  com- 
mon.(a) 

25.  Independently  of  statutory  provisions,  substantially  the  sanae 
principles  have  been  adopted  in  this  country.  Thus,  it  is  laid  down  in 
Pennsylvania,  that  in  case  of  a  devise  to  several  persons,  with  no  indi- 
cation of  an  intent  to  divide  the  property,  or  to  give  it  in  severalty,  the 
estate  is  a  joint  tenancy  ;  while,  if  such  intent  appears  from  express 
words,  or  the  nature  of  the  case,  it  is  a  tenancy  in  common.(4) 

25  a.  So,  in  Massachusetts,  a  testatrix  having  devised  all  the  rest  and 
residue  to  her  executors,  or  the  survivor  of  them,  their  heirs  or  assigns, 
to  be  held  by  them,  or  the  survivor  of  them,  their  heirs  or  assigns,  for 
the  following  uses  :  the  income  to  be  paid  semi-annually,  to  my  daugh- 
ter, and,  in  case  of  her  marriage,  the  trust  to  remain  the  same,  the  inter- 

(1)  Doe  V.  TVainewright,  5  T.  R.  427.  j      (4)  6  Cruise,  287;  Martin  v.  Smith,  5  Bina. 

(2)  Meyrick  v.  Wliislitiw,  2  B.  &  A.  810.      |  16;   Spry  v.    Bromfield,  7    Mees.   &  W.   545. 

(3)  Tvvisden  v.  Lock,  Amb.  6G3  ;  2  Col.  1  See  Vanderplank  v.  Kin<f,  3  Hare,  1 ;  Howell 
Jur.  347.  '  V.  Howell,  1  Spencer,  411. 


(a)  Devise,  that  tlie  residue,  after  the  denth  of  a  tenant  for  life,  should  be  equally  divided 
among  the  testator's  five  sisters  and  their  respective  families.  Held,  a  gift  of  one  fifth  to 
each  of  the  sisters  and  her  children,  living  at  the  testator's  death,  as  joint  tenants.  Parkin- 
son, 2  Eng  L.  &  Equ.  104. 

In  case  of  husband  and  wife,  named  as  devisees,  the  wife  will  take  alone,  where  different 
clauses  taken  together  indicate  an  intention  to  that  effect,  and  that  the  former  is  named, 
only  as  having  an  interest  in  the  wife's  estate. 

A  testator,  owning  one-half  of  a  tract  of  land,  devised  the  same  to  his  "daughter,  M, 
wife  of  F,"  &c., — ''in  short,  my  will  is,  that  F  and  W,  my  pon-in-law  and  daughter,  have 
my  share  of  that  land."  Held,  that  M  alone  took  a  fee  la  the  land,  McClure  v.  Douthitt,  6 
Barr,  414. 


CHAP.  LIX.] 


JOINT  TENANCY,  ETC.,  HOW  CREATED. 


665 


est  still  to  be  paid  to  her,  on  her  own  receipt,"  Held,  the  executors 
took  a  fee-simple  in  the  real  estate,  as  joint  tenants,  and  an  absolute 
property  in  the  personal  estate,  also  in  j<jint  tenancy,  without  any  bene- 
ficial interest  in  either,  for  themselves,  but  in  trust  to  pay  the  income 
of  both  to  the  daughter  for  her  life,  with  an  equitable  reversion  therein, 
to  the  legal  heirs  of  the  testatrix  at  the  time  of  herTleath,  to  be  con- 
veyed and  paid  over  to  them  on  the  decease  of  the  daughter.(l) 

26.  If  an  intention  appear  by  the  will,  t'lat  all  tlie  devisees  shall  take 
several  and  distinct  shares,  they  will  be  tenants  in  common.  Thus,  a 
devise  to  A,  B  and  C,  and  their  heirs,  respectively,  forever,  makes  A, 
B  and  C  tenants  in  common.  So  a  devise  to  two  sons  eqnalhj  and 
their  heirs.  So  a  devise  to  several  persons,  their  heirs  and  assigns,  all 
of  them  to  have  part  and  part  alike,  and  the  one  to  have  as  much  as 
the  other.  So  a  devise  to  two  grandsons,  A  and  B,  "jointly,  their 
heirs  and  assigns  forever."(2)  So  a  devise  to  "  three  children,  to  be 
kept  as  joint  stock  until  the  youngest  shall  arrive  at  the  age  of  21 
years,  and  then  the  whole  property  and  its  increase  to  be  divided 
equally  between  them,  to  each  one  third  part."(3)  So  a  devise  to 
"  the  survivors  of  my  brothers  and  sisters,"  naming  them,  is  a 
gift  in  common,  to  all  who  survive  the  testator,  with  an  imme- 
diate right  of  possession  ;  not  a  contingent  devise  to  the  two  who 
should  survive  the  third. (4)  So,  a  devise  to  A  and  B  equally  to  them, 
for  this  word  implies  a  division.  So  the  words  equally  to  be  divided, 
have  sometimes  been  held  to  create  a  tenancy  in  common,  even  though 
there  were  other  words  indicating  a  right  of  survivorship.  Thus,  a  de- 
vise to  three  daughters,  equally  to  be  divided  ;  and  if  any  of  them  die 
before  the  other,  the  survivors  to  be  her  heirs,  equally  to  be  divided, 
and  if  they  all  die  without  issue,  remainder  over  ;  creates  several  estates 
tail,  with  cross-remainders.  So  a  devise  to  the  testatoi's  two  sons  and 
their  heirs,  and  the  longer  liver  of  them,  equally  to  be  divided  be- 
tween them  and  their  heirs,  after  the  death  of  his  wife,  makes  the  sons 
tenants  in  common  ;  because  the  will  intends  that  the  posterit}'  of  the 
sons,  as  well  as  themselves,  shall  have  an  equal  part,  and  the  word  sur- 
vimr  means  only  that  the  survivors  shall  share  equally  with  the  heirs 
of  the  one  who  dies  first.  So  a  devise  to  A,  B  and  C,  and  as  they  shall 
severally  die,  to  their  several  heirs,  makes  them  tenants  in  common. (5) 

27.  In  case  of  an  executory  trust,  where  the  greatest  latitude  of  con- 
struction is  allowed  to  effect  the  intention,  even  the  words  joint  tenants 
may  make  a  tenancy  in  common, 

28.  Devise  to  trustees,  as  soon  as  the  testator's  three  daughters 
should  respectively  reach  the  age  of  twenty-one,  to  convey  to  them 
and  the  heirs  of  their  bodies,  as  joint  tenants.  Held,  the  meaning  was, 
that  there  should  be  a  survivorship  only  in  case  either  of  the  daugh- 
ters should  die  without  issue ;  and  therefore  Chancery  would  decree 
conveyances  to  them  at  twenty-one  respectively,  in  tail  male,  with 
cross-remainders  in  tail,(6) 

29.  So  where  an  estate  is  devised  "  to  be  equally  divided  among, 
&c.,  and  the  survivor  of  them  and  their  heirs  forever,"  if  the  devisees 


(1}  Kcntincr  v.  Smitli,  5  Cush.  232. 

(2)  Davis  V.  Smith,  4  Barring.  68. 

(3)  Weir  v.  Humphries,  4  Ired.  Eq,  264. 

(4)  liriinmer  i'.  Sohitr,  1  Cush.  118. 


(5)  6  Cruise,  287-94.  See  Fleming  f.  Kerr, 
10  Watts,  444  ;  Brown  v.  Rwrasey,  7  Gill, 
347  ;   Moody  v.  Elliott,  1  Md.  Ch.  290. 

(6)  Marryat  v.  Towiiley,  G  Cruise,  295. 


666 


JOINT  TENANCY,  ETC.,  HOW  CREATED. 


[CHAP.  LIX. 


are  children  of  the  testator,  and  a  tenancy  in  common  will  best  effect 
the  testator's  undoubted  intention  as  to  the  disposing  of  the  property 
among  them  and  their  issue,  the  words  equally  to  he  divided  shall  control 
the  word  survivor^  and  the  will  shall  create  a  tenancy  in  common  (1) 

30.  Devise  to  the  testator's  five  children,  and  the  survivors  and  sur- 
vivor of  them,  and  the  executors  and  administrators  of  such  survivor, 
share  and  share  alike,  as  tenants  in  common,  and  not  as  joint  tenants. 
Held,  the  word  survivor  referred  to  the  death  of  the  testator  himself, 
and  that  the  children  took  as  tenants  in  common. (2) 

31.  Devise:  according  to  quantity  and  quality,  each  taking  pos- 
session of  his  part  at  the  age  of  twenty-one,  but  if  one  or  more  die 
before  this  age,  their  part  to  be  equally  divided  among  the  survivors. 
This  is  a  tenancy  in  common.(3) 

32.  But  where  a  will  contains  words  importing  a  joint  tenancy, 
and  others  importing  a  tenancy  in  common,  both  shall  have  effect  if 
possible. 

33.  Thus  a  devise  to  A  and  B,  and  the  survivor  of  them  and  their 
heirs,  equally  to  be  divided,  share  and  share  alike,  gives  A  and  B  a 
joint  tenancy  for  their  lives  and  the  inheritance  in  common. (4.)(a) 

34.  Devise  to  A  and  B,  severally  and  in  distinct  parts,  each  to  have 
his  part  on  these  conditions  and  limitations.  If  A  should  die,  leaving 
no  heirs  of  his  body,  living  B  or  any  heirs  of  his  body,  the  lands  de- 
vised to  A  to  be  and  remain  to  B  or  such  his  said  heirs ;  and  the 
same  provision  in  favor  of  A,  &c.,  in  case  of  B's  death.  If  A  and  B 
both  die,  leaving  no  heirs  of  either  of  their  bodies,  remainder  over. 
Held,  A  and  B  took  an  estate  tail,  with  cross-remainders  in  tail. (5) 

35.  A  devise  may  be  so  expressed,  as  to  create  a  tenancy  in  com- 
mon, but  with  no  power  of  partition.  Devise  to  two  daughters,  to 
be  equall}^  divided  between  them,  share  and  share  alike,  for  their 
natural  lives ;  then  to  be  to  their  and  each  of  their  children,  and  to 
be  divided  between  them  share  and  share  alike.  Held,  the  daughters 
took  an  estate  for  life  in  common,  but  could  not  make  partition  to 
bind  their  children. (6) 

36.  Cross-remainders  may  arise  in  a  will  by  implication.(J) 

37.  Devise  to  the  testator's  five  3'oungest  sons  and  their  heirs ;  and 
if  they  all  died  wdthout  issue  male,  or  any  of  them,  the  land  to  revert 
to  his  right  heirs.  Held,  it  was  plainly  intended  that  the  devisor's 
right  heirs  should  have  nothing,  while  any  issue  of  the  five  sons 
remained  ;  and  therefore  these  sons  took  estates  tail,  with  cross- 
remainders.(8) 

38.  Devise  to  A  and  his  heirs  of  a  portion  of  land,  and  the  rest  to  B 


(1)  Stones  V.  Heurtly,  1  Yes.  165. 

(2)  Kose  V.  Hill,  3  Burr.  1881 ;  Garland  v. 
Thomas,  1  B.  &  P.  N.  R.  82. 

(3)  Doe  V.  Botts,  4  Bibb,  420. 

(4j  Barker  v.  Giles,  2   P.  Wms.  280 ;  Bar- 
ker V.  Smitii,  9  Mod.  157  ;  3  Bro.  Pari.  104. 

(5)  Hawley  v.  Northampton,  8  Mass.  3. 

(6)  Jackson  v.  Luquere,  5  Cow.  221. 


(7)  See  Livesey  v.  Harding,  1  Russ.  &  ^fy. 
636 ;  Green  v.  Stephens,  12  Yes.  419,  17,  64; 
Turner  v.  Fowler,  10  Watts,  325  ;  Cur.sham 
V.  Newland,  4  Mees.  &  W.  101  ;  Yander- 
plank  V.  Kinfj,  3  Hare,  1 ;  Smith  v.  Stewart, 
•i  Eng.  L.  &  Equ.  175. 

(8)  Clache's  case,  Dyer,  330. 


(a)  Devise  to  A  and  B,  equally  between  them,  as  joint  tenants,  and  their  several  and 
respective  heirs  and  assigns  lorever.  Held,  they  were  joint  tenants  for  life,  with  several  in- 
heritances upon  the  survivor's  death.     Doe  v.  Green,  4  Mees.  &  W.  229. 


CHAP.  LIX.] 


JOI^'T  TENANCY,   ETC.,   JlOW   CREATED. 


6G7 


and  his  heirs ;  the  survivor  of  them  to  be  lieir  to  the  other,  if  either 
die  without  issue.  A  and  B  take  an  estate  tail  in  common,  wilheros 
remainders.(l) 

39.  Devise  to  A  and  B  and  their  heirs,  eiiually  to  be  divid«'d  be- 
tween them,  and,  if  they  die  without  issue,  then  to  C.  A'aud  H  take 
estates  tail  with  eross-remainders.(2)  '" 

40.  But  the  implication  must  be  a  necessary  one.  In  other  words, 
there  must  be  an  intention  that  no  one  else  shall  inherit  any  part  of 
the  estate  or  take  it  by  way  of  remainder,  while  any  of  the  immediate 
devisees  or  their  issue  are  living.  Thus  a  devise  to  A  and  B,  equally 
to  be  divided,  and  to  the  heirs  of  their  respective  bodies,  and  for  de- 
fault of  such  issue  to  C;  creates  no  cross-remainders  between  A  and 
B,  the  words  "  for  default,  &;c.,"  meaning  merely  for  default  of  heirs  of 
their  respective  bodies^  which  last  expression  would  clearly  have  created 
no  cross-remainders.(3)(a) 

41.  Devise  to  A  for  life,  then  toB  and  C,  equally  to  be  divided,  and 
the  several  and  respective  issues  of  their  bodies,  and  for  want  of  such 
issue  to  A  in  fee.  Held,  the  words  several  and  respective  disjoined  the 
title,  and  no  cross-remainders  were  created, (4) 

42.  But  in  a  subsequent  case,  it  was  remarked  by  Lord  Kcnyon, 
that  creating  a  tenancy  in  common  equally  divides  the  title,  whether 
the  word  respective  be  used  or  not;  and  that  it  was  unworthy  of  the 
great  learning  and  ability  of  Lord  Hardwicke  to  lay  such  stress  as  he 
was  stated  to  have  done  on  this  word.(-.») 

43.  Devise  to  all  and  every  the  younger  children  of  A ;  if  more  than 
one,  equally  to  be  divided,  and  to  the  heirs  of  their  respective  body  and 
bodies,  as  tenants  in  common  ;  if  only  one,  then  to  such  child  and  the 
heirs  of  his  or  her  body ;  and  for  want  of  such  issue  to  B.  Held,  the 
younger  children  of  A  took  cross-remainders.(6) 

44.  Devise  to  A,  B  and  C,  and  the  heirs  of  their  bodies  respectively, 
as  tenants  in  common  ;  in  default  of  such  issue,  to  the  testator's  right 
heirs.     Held,  cross  remainders  were  created  between  A,  B  and  C.(7) 

45.  Devise  to  four  sons  and  the  male  heirs  of  their  bodies  forever, 
and  if  either  of  them  die  under  twenty -one,  his  or  their  lands  to  be 
equally  divided  between  the  surviving  brethren  or  their  male  heirs. 
Held,  no  cross-remainders  were  raised. (8) 

46.  Devise  of  a  farm  to  A  and  B,  equally  between  them,  share  and 
share  alike  ;  with  the  words  "  I  entail"  it  upon  the  lawful  male  heirs 
of  A  and  B.     Held,  no  cross-remainders  arose.(9) 


(1)  Chadock  v.  Cowley,  Cro.  Jac.  695. 

(2)  Holmes  v.  Meynel,   T.   Ray.    452;    2 
Show.  135. 

(3)  Comber  v.  Hill,  Stra.  9G9  ;  Hungerford 
V.  Anderson,  4  Day,  368. 

(4)  Davenport  V.  Oldis,  1  Alk.  579. 


I      (5)  See  Livesey  v.  Harding,  1  Russ  &  My. 
636. 

(6)  Watson  v.  Foxon,  2  E.  36. 

(7)  Doe  V.  Webb,  1  Taun.    234;    Roe    v. 
Clayton,  6  E.  C28;    1  Dow,  384. 

(8)  Hungerford  v.  Anderson,  4  Day,  368. 

(9)  Cooper  v.  Jones,  3  B.  &  A.  425. 


(a)  The  rule  lias  been  tlms  slated  by  the  court  in  South  Carolina.  Where  property  is 
devised  to  two  persons  for  life,  and  at  their  deatii  to  their  ciiihh-en  ;  if  hotli  die  wiiliout 
leaving  children,  remainder  over ;  cross-remainders  are  implied.  The  same  construction 
may  be  given,  though  tiie  word  loth  is  omitted;  founded  upon  an  apparent  intcniion  to 
devise  over  the  whole  together  as  one  estate,  (wiiiih  could  not  be  cflected  till  both  were 
dead  without  children,)  and  not  to  limit  over  tlie  respective  shares.  But  it  is  clear  that 
cross-remainders  are  not  created,  where  tiio  respective  shares  are  limited  over  upon  the 
death  oi  either  without  children.     Baldrick  v.  White,  2  Bai.  445. 


66S 


JOINT  TENANCY,  ETC.,  HOW  CREATED. 


[CHAP.  LIX. 


47.  It  was  formerly  held,  that  cross-remainders  could  not  arise  by 
imglication  between  more  than  two  persons;  the  policy  of  the  law 
being  opposed  to  the  division  of  estates  and  tenures,(a)  and  it  being 
uncertain  whether  the  survivors  should  take  as  joint  tenants  or  tenants 
in  common.  Thus  where  a  testator  devised  a  house  to  each  of  his  three 
sons  and  his  heirs,  provided  that  if  all  of  them  should  die  without  issue, 
the  houses  should  remain  over  to  his  wife  in  fee ;  held,  there  were  no 
cross-remainders,  but,  on  the  death  of  either  son  without  issue,  his  estate 
passed  to  the  wife.(l) 

48.  In  more  recent  cases  this  principle  has  been  stated  in  a  somewhat 
qualified  form,  as  follows.  Where  there  are  but  two  parties,  the  law 
presumes  in  favor  of  cross-remainders,  but  where  there  are  more  than 
two,  against  them  ;(6)  but  in  either  case  a  clear  intention  on  the  part 
of  the  testator  will  control  the  presumption  of  law.  And  the  modern 
doctrine  is  stated  to  be,  that  in  all  cases  where  there  are  no  words  to 
sever  the  title,  cross-remainders  are  implied.  More  especially  is  this  con- 
struction adopted,  where,  although  the  will  provides  for  the  case  of 
more  than  two  devisees,  yet  in  fact  there  are  only  two  who  claim  under 
it.(2) 

49.  Devise,  to  the  use  of  all  and  every  the  daughter  and  daughters 
of  A,  and  the  heirs  of  her  and  their  bodies;  such  daughters  to  take  as 
tenants  in  common;  and  for  default  of  such  issue  to  the  right  heirs  of 
the  devisor.  Held,  the  last  limitation  was  of  the  whole  estate,  after  the 
death  of  all  the  daughters,  and  not  of  their  respective  shares  upon  the 
death  of  either  of  them;  that  the  heir  was  to  take  nothing,  while  any 
of  the  daughters  or  issue  continued;  and  therefore  that  the  daughters 
took  cross-remainders.(3) 

50.  Devise  to  three  sons  in  succession  for  life,  remainder  to  the  heirs 
male  of  their  bodies,  then  to  the  heirs  female,  then  to  all  and  every  the 
testator's  daughter  and  daughters  as  tenants  in  common,  and  to  the  heirs 
of  her  and  their  body  and  bodies,  then  to  the  heirs  of  his  brother  A 
forever.  Held,  the  language  of  the  will  showed  a  clear  intent  that  the 
issue,  even  the  daughters,  of  each  son,  should  all  take  before  the  next 
son;(c)  that  the  words  daughter  and  daughters,  all  and  every,  &c.,  implied 
that  the  number  might  probably  be  diminished  before  the  daughters 
would  take,  and  the  limitation  of  a  remainder  to  tiie  heirs  of  A,  that  A 
himself  would  not  probably  outlive  the  prior  parties,  and  that  a  single 
remainder  only  would  vest  in  them;  that  if,  on  the  death  of  onedaugliter, 
her  share  should  go  over  to  the  heirs  of  A,  this  would  involve  the  tAVO- 
fold  absurdity,  of  a  remainder  to  the  daughters  themselves  as  the  heirs 
of  A,  which  they  would  be  for  want  of  children  of  A,  and  also  of 
giving  cross-remainders  to  the  daughters  of  the  testator's  sons,  and 


(1)  1  Saun.  185  a,  n.  6 ;  Gilbert  v.  Witty, 
Cro.  Jac.  655. 

(2)  Doe  V.  Cooper,  IE.  229;  Cole  v.  Lev- 
ingston,  1  Vent.  224;  Pery  v.  White,  Cowp. 


777;  Phipard  v.  Mansfield,  Cowp.  797  :  2  E. 
36. 

(3)  Wright  V.  Holford,  Cowp.  31. 


(a)  Lord  Mansfield  remarks,  that  this  reason  h^d  not  very  prreat  weight  at  the  time  it  was 
given,  and  certainly  had  none  then.     Phipard  v.  Mansfield,  Cowp.  800. 

{h)  The  saTne  principle  has  been  stated  thus;  that  in  the  former  case  an  intention  to  raise 
cross-remainders  is  presumed ;  while  in  the  latter  it  is  necessary  to  resort  to  other  words  in 
the  will  to  discover  such  intention.     Athertoa  v.  Pye,  4  T.  R.  713. 

(c)  With  cross-remainders  between  them. 


CHAP.  LIX.] 


JOINT  TENANCY,  ETC.,  IIOW  CRKATKD.' 


r,09 


withholding  tbcm  from  his  own  dtiuuhters;  and  upon  these  groi.nda 
that  the  daughters  took  ci'oss-rernaindt'r.s. 

51.  Devise  to  A  and  B,  brothers  of  the  testator,  and  (J  his  sister,  and 
the  lieirs  of  their  bodies,  as  tenants  in  eoinnion,  and  for  want  (^1  such 
issue,  to  his  own  right  heirs.  Held,  the  words  showed  ail  intention 
that  the  brothers  and  the  sister  should  be  equal  sharers  of  the  testator's 
bounty,  and  that  no  division  should  take  plaee,  to  create  an  inequality 
between  them,  till  a  failure  of  the  heirs  of  all  their  bodies.  If  the  tes- 
tator meant  the  estate  should  go  to  his  heir  at  law,  he  would  not  have 
made  a  will.  The  intention  was,  that  neither  A  nor  B  should  take  as 
heir,  but  that  the  estate  should  remain  subject  to  entailment,  during 
the  lives  of  A,  B  and  C,  and  their  issue,  after  which  the  heir  at  law 
was  to  take.  Any  other  construction  would  give  to  one  brother,  upon 
the  death  of  the  other  without  issue,  a  fee-simj)le.  and  the  sister  nothing, 
in  violation  of  the  intended  equality.  Hence  there  must  be  eross-re- 
mainders.(l) 

52.  Devise  to  all  and  every  the  daughter  and  daughters  of  the  tes- 
tator's daughter  A,  and  the  heirs  male  of  the  l)ody  o^  such  daughter 
or  daughters,  equally  ;  if  more  than  one,  as  tenants  in  common  ;  for 
and  in  default  of  such  issue,  all  said  premises  to  the  testator's  heirs. 
Held,  the  words  such  issue  must  mean  issue  of  all  of  them  ;  that  the 
word  all,{a)  in  the  last  clause  implied  that  the  whole  remainder  should 
go  at  once  to  the  heirs  ;  and  therefore  the  daughters  took  cross- remain- 
ders. (2) 

52  a.  A  testator,  by  his  will,  which  took  effect  in  1801,  devised  his 
real  estate  to  his  four  sons  and  the  heirs  of  their  bodies,  share  and  share 
alike  ;  if  any  one  of  them  should  die  without  issue,  his  share  was  to  go 
to  the  survivors,  to  be  equally  divided  among  them  ;  and,  if  all  the 
sons  should  die  without  issue,  the  estate  was  to  go  to  the  children  of 
the  daughters.  Held,  1.  That,  by  the  primary  devise  to  the  sons,  ihey 
took  estates  tail,  with  contingent  cross  remainders,  which,  by  tlie  New 
York  Statute  of  178(5,  abolishing  entails,  were  ctjuveried  into  absolute 
estates;  2.  That  the  limitations  over  to  the  survivors  among  the  sons, 
and  to  the  children  of  the  daughters,  were  cut  off'  hy  that  statute.(3) 

53.  With  regard  to  the  words  in  a  deed  necessary  to  create  a  con- 
dition, as  the  condition,  if  any,  constitutes  a  formal  part  of  the  instru- 
ment, the  language  required  to  express  it  will  be  more  properly  con- 
sidered hereafter.     (See  Condition — also.  Estate  on  Condition.) 

51."  In  a  devise,  no  formal  expressions  are  necessary  to  create  a  con- 
dition. Thus  a  devise  of  land  to  an  executor  tu  he  sol/,  or  a  devise  to 
a  person  ad  solve ndum,  £.20  to  A,  makes  a  condition. (1) 

55.  Devise  to  A,  the  eldest  daughter  of  the  testator,  and  her  heirs, 
that  she  should  pay  to  B,  her  sister,  X30  per  annum.  Hell,  a  jjood 
condition,  for  breach  of  which  B  might  enter,  because  this  was  the  plain 
intent,  and  otherwise  B  would  have  no  remedy. (5) 


(1)  Doo  V.  Burville.  2  K.  47. 

(2)  Atliertoii  V.  Pye,  4  T.  11.  710. 

(3)  Lull  V.  Wykoff,  2  Coiiist.  355. 


(4)  Co.  Lit.  2.S6  h.  See  StHrk  v.  SmUoj, 
25  Maine,  201  ;  Marwiik  v.  Andrew.-s  12 
Siicpl.  525. 

(5)  Crickmere  «;.  P.iterson,  Cro.  Kliz   146. 


(a)  It  w.is  remarked  by  T.ord  Kenyon,  that  tills  word  could  make  no  difference  in  tbe 
sense.     Watson  v.  Foxon,  2  E.  42. 


570  JOINT  TENANCY,  ETC.,  HOW  CREATED.  [CHAP.  LIX. 

56.  Upon  the  ground  that  for  condition  broken  the  heir  alone  can 
enter,  where  a  devise  is  made  to  him  in  terms  which  w^ould  make  a 
condition  as  to  a  stranger,  they  shall  constitute  a  limiiation^  to  take  ad- 
vantage of  which  no  entry  is  necessary.  Thus  a  devise  to  the  eldest 
son  of  the  testator,  paying  to  .the  other  children  a  certain  sum  in  a  cer- 
tain period,  is  construed  as  a  devise  to  him  till  he  fails  to  make  such 
payment.(l) 

(1)  'Wellock  V.  Hammond,  Cro.  Eliz.  204;  Boraston's  case,  3  Rep.  20  b;  (Curteis  t;.  Wol- 
verston,  Cro.  Jac.  56.) 


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This  book  is  DUE  on  the  last  date  stamped  below. 


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